Lawful access rears its head again

Here we go again .... the government is preparing a new "lawful access" law. The media coverage seems to suggest that it covers both eavesdropping of internet based communications (with a warrant) and obtaining subscriber data (without a warrant).

globeandmail.com: New law to give police access to online exchanges

BILL CURRY

From Thursday's Globe and Mail

February 12, 2009 at 3:39 AM EST

OTTAWA — The Conservative government is preparing sweeping new eavesdropping legislation that will force Internet service providers to let police tap exchanges on their systems - but will likely reignite fear that Big Brother will be monitoring the private conversations of Canadians.

The goal of the move, which would require police to obtain court approval, is to close what has been described as digital "safe havens" for criminals, pedophiles and terrorists because current eavesdropping laws were written in a time before text messages, Facebook and voice-over-Internet phone lines.

The change is certain to please the RCMP and other police forces, who have sought it for some time. But it is expected to face resistance from industry players concerned about the cost and civil libertarians who warn the powers will effectively place Canadians under constant surveillance.

Public Safety Minister Peter Van Loan confirmed the plan yesterday during an appearance before a House of Commons committee and offered further explanation afterward.

Public Safety Minister Peter Van Loan confirmed the plan. (Sean Kilpatrick/The Canadian Press)

"We have legislation covering wiretap and surveillance that was designed for the era of the rotary phone," Mr. Van Loan said.

"If somebody's engaging in illegal activities on the Internet, whether it be exploitation of children, distributing illegal child pornography, conducting some kind of fraud, simple things like getting username and address should be fairly standard, simple practice. We need to provide police with tools to be able to get that information so that they can carry out these investigations."

Mr. Van Loan said there have been situations where the police want to act quickly to stop a crime, but can't because of the current laws.

"In some of these cases, time is of the essence," he said. "If you find a situation where a child is being exploited live online at that time - and that situation has arisen before - police services have had good co-operation with a lot of Internet service providers, but there are some that aren't so co-operative."

Although police agencies have been calling for such a law since at least the mid-1990s, this would be the first legislative effort in this direction by the Conservatives.

The reaction can be predicted, however, because Paul Martin's Liberal government faced stiff resistance when his public safety minister, Anne McLellan, introduced a "lawful-access" bill in November, 2005, shortly before that government was defeated.

The Conservative justice critic at the time, Peter MacKay, who is now in the Conservative cabinet, expressed concern with the bill, and Privacy Commissioner Jennifer Stoddart went further, saying there was no justification for such a law.

The concern of critics is that unlike a traditional wiretap that cannot commence without judicial approval, lawful-access legislation in other countries has forced Internet providers to routinely gather and store the electronic traffic of their clients. Those stored data can then be obtained by police via search warrant.

"That means we're under surveillance, in some sense, all the time," said Richard Rosenberg, president of the B.C. Freedom of Information and Privacy Association. "I think that changes the whole nature of how we view innocence in a democratic society."

RCMP Commissioner William Elliott said yesterday the lack of such legislation is causing problems for police.

"We're speaking generally about the development of technology that is difficult or impossible to wiretap," Mr. Elliott said after appearing alongside Mr. Van Loan at the House of Commons Public Safety and National Security Committee.

"In the old days, for a wiretap it was pretty simple. You sort of clicked onto the physical wires. So we have some instances where the court authorizes us and other police forces, for example, to intercept communications, but we don't have the technical ability to do that. So certainly the RCMP is supportive of changes of legislation that would allow those kind of intercepts."