Summary of Submissions to the Lawful Access Consultation

Chapter 5: Comments by Canada's Privacy and Information Commissioners

Total Number of Written Submissions Received: 5

A. General

  1. Interception and monitoring of private communications is highly intrusive - striking at the heart of the right to privacy. The burden of proof must always be upon those who claim that some new intrusion or limitation on privacy is necessary.

  2. Any such proposed measure must meet a four-part test:
    • It must be demonstrably necessary in order to meet some specific need.
    • It must be demonstrably likely to be effective in achieving its intended purpose.
    • The intrusion on privacy must be proportional to the security benefit derived.
    • It must be demonstrable that no other, less privacy-intrusive, measure would suffice to achieve the same purpose.
  3. The proposed measures risk stirring up public distrust in information technology and communications generally, in the belief that they are intercepted all the time or at least that they are susceptible to interception.

  4. The proposed powers of access to the private communications of Canadians go far beyond maintaining the capabilities and authorities available to law enforcement and national security agencies in the past.
  5. If extended powers are indeed believed to be necessary, they must only be used and deployed to meet legitimate law enforcement objectives. The information collected through these powers must not be used for purposes unrelated to public safety.

  6. There is also a responsibility on the part of law enforcement officials to protect the confidentiality of that information, particularly if it proves to have no relevance to their investigations.
  7. The three departments involved in the proposal should present a clear statement of the problems faced, together with operational evidence supporting the need for enhanced interception and surveillance powers proposed in the consultation document.

  8. Concern for the protection of privacy from unnecessary erosion should extend beyond the proposals outlined in the consultation document. In the past year, Canadians have been faced with legislation unprecedented in its capacity to diminish the privacy of individuals. This included the Anti-terrorism Act, Omnibus Bill 4234 and the privacy-invasive provisions of the Canada Customs and Revenue Agency's air traveller surveillance database. The introduction of this legislation was fragmented, with no clearly articulated context and with limited consultation or discussion.

  9. Privacy is a constitutionally protected right. Privacy in electronic communications should only give way to law enforcement and national security needs where those needs clearly outweigh the privacy interest and then only to the minimal extent necessary. The existing Criminal Code provisions dealing with interception of private communications appropriately balance individual privacy interests against the public interest in effective law enforcement.

  10. The Government of Canada should only proceed further with the lawful access proposals if clear evidence is offered to support the need for changes. Most certainly, the Government of Canada should not proceed simply because it is expedient to do so in the post-September 11 climate of fear and insecurity.

  11. It is worth noting that Australia, South Africa and the UK have recently experienced strong opposition to the enactment and implementation of new lawful access legislation with similar objectives to those outlined in the Canadian consultation document.
  12. In spite of strict regulations on its use and the criminalizing of unauthorized access to the system, the government will be unable to prevent abuse of the system in practice.

  13. Criminals will quickly detect that they are under surveillance and will use other means of communication, while most citizens will be targets of this vast system, unable to unplug all their telephones and other communications equipment.

  14. No evidence has been offered that existing interception and search and seizure laws are inadequate for dealing with today's electronic communications, nor does the Council of Europe Convention on Cybercrime offer a persuasive rationale for the proposals. The proposals would weaken existing legal protections of privacy in Canada without a clear and compelling justification.
  15. Canadians are entitled to feel confident that their communications and on-line activities will not be arbitrarily intercepted or scrutinized.

  16. The Convention has not yet been ratified by Canada, so whatever legal obligation is being asserted to implement its provisions is in fact non-existent.

  17. If the Convention calls for unjustifiable intrusion on the privacy rights of Canadians which is inconsistent with our values and rights, the Convention should not be ratified by the Canadian government.

  18. The government has not shown in the consultation document how it will comply with Article 15 - Conditions and Safeguards - of the Convention, in particular how it will provide adequate protection of human rights and freedoms and how it will observe the principle of proportionality. One might also ask how the imposition of the Convention could comply with its own Article 15.

B. Requirements to Ensure Intercept Capability

  1. Any new legislation dealing with interception and seizure of Internet communications content and traffic data should be as narrow and specific as possible. Routine and exploratory electronic surveillance on a large scale must not be allowed. Overbroad measures would impair privacy rights and run afoul of section 1 of the Canadian Charter of Rights and Freedoms.

  2. New technologies and communications services may well pose a challenge to existing interception methods and require CSPs to provide law enforcement agencies with basic interception and surveillance capabilities to achieve lawful access to them.

  3. As stated in the consultation document, these capabilities should maintain the status quo, allowing existing state powers to be effectively applied to the new communications services. That is to say, law enforcement and national security agencies should have the same ability to intercept and monitor e-mail and cellphone communications, for example, as is now the case with letter mail and conventional wireline telephone communications.

  4. More information should be provided on how the intercepts would be carried out, by whom and for what purposes, together with proposals on evidentiary thresholds, oversight controls and safeguards before a reasonable assessment is possible on this issue.

  5. Requiring service providers to acquire technical capacity to provide lawful access co-opts the private sector inappropriately in state surveillance. The costs to CSPs will raise consumer prices and may diminish the competitiveness of Canada's Internet providers. The development and implementation of Internet technology will be driven by the interests of surveillance rather than by the needs or realities of Canadian business and its consumers.

  6. Carrying out interceptions on a traditional wireline telephone system is not comparable with monitoring wireless communications systems or the Internet which can provide more personal information and be more privacy invasive. A new approach is needed rather than simply extending existing procedures to address new technologies.
  7. The infrastructure, tools and databases necessary to provide the proposed lawful access will attract substantial interest on the part of numerous criminal organizations, terrorists and the intelligence services of countries that are not signatories to the Convention and who will be unconcerned by any possible penalties imposed for breaking the rules on access to the system.

C. Data Retention and Preservation Orders

  1. The government should continue to resist any suggestions that general retention requirements be part of the lawful access initiative.
  2. Preservation orders are just as dangerous and inappropriate from a privacy viewpoint as retention orders. The concept of a preservation order does not exist in Canadian law, so the assertion that this type of authority is necessary to "maintain" existing lawful access capability cannot be so.

  3. It is not clear from the consultation document what level of proof of suspected wrongdoing would have to be presented to a judge in order to serve a preservation order on a CSP. In some circumstances it appears that no proof would be necessary - the order would simply be issued by law enforcement or national security agencies.

  4. The judge asked to approve a preservation order may be less inclined to insist on rigorous proof that it is necessary, since the information will not be handed over to law enforcement agencies at that time. Similarly, the second judge asked to order the actual production of the information may assume that the appropriateness of the whole intrusion has already been established before the first judge.

  5. It is possible that preservation orders could be served that covered message content rather than traffic data. ISP preserved content could then be accessed subsequently by law enforcement agencies with a search warrant which is considerably easier to obtain than an interception order.

  6. An order requiring preservation of information at an ISP introduces additional privacy risks such as data security at the ISP as well as potential unlawful access by hackers and others.

  7. Provisions should not be drafted that would require ISPs to retain all traffic data and content for a specific period solely for the purposes of a hypothetical law enforcement action. Such measures would be overbroad and could seriously harm Canadian privacy, as well as the business of Canadian-based ISPs. Canadians could flee to ISPs based outside Canada to preserve their privacy and cause serious damage to an industry that underpins domestic electronic commerce.

  8. The principle of data preservation orders presents no problem, but the breadth of Articles 16 and 17 of the Convention 35 certainly does and the proposed 90, 120 or 180 day periods are too long.

  9. Preservation orders should only apply to stored computer data (not paper records). They should only be available to support an ongoing investigation into a possible violation of criminal law.

  10. Law enforcement agencies, consistent with section 487.11 of the Criminal Code, should only be able to secure an exigent preservation order when it would be impracticable to obtain a judicial order in the circumstances.

  11. Requiring ISPs to track all online activities of their subscribers, so that this information could potentially be used as evidence, would require a massive investment in storage capacity for the ISPs. This could cause them to increase their fees substantially, impeding the growth of online services in Canada. It could also result in industry consolidation with negative implications for privacy and free speech.

  12. This massive aggregation of data will be of little use to law enforcement agencies unless they have adequate resources to review and analyze the vast amounts of data that would be collected daily.

D. General Production Orders

  1. The consultation document does not make the case for production orders - the need has not been established. However, a general production order has been proposed, which is like a search warrant without the need for a law enforcement officer to be present.
  2. General production orders be should be available only from a judicial authority applying existing standards. It seems unclear, however, why authority to compel CSPs to provide this information should be necessary now, when law enforcement agencies have traditionally been able to obtain it.

E. Specific Production Orders for Traffic data

  1. The assumption in the consultation document that traffic data necessarily involves a lower expectation of privacy should be called into question. In the case of regular telephone communication, telecommunications associated data consists merely of phone numbers dialled by a subscriber and the incoming phone numbers of callers who have attempted to contact that subscriber. By contrast, collection of telecommunications associated data related to e-mail and Internet communications can yield a great deal of information about the intimate details of Canadians' personal lives.

F. CNA/LSPID Information

  1. The consultation document suggests the creation of a national database containing customer name and address and local service provider information (CNA/LSPID) for all Canadian subscribers, because law enforcement/national security agencies are experiencing difficulty in identifying the local service provider associated with a given telephone number or subscriber. A national database of this kind should not be created.

  2. If it involves some effort on the part of law enforcement agencies to obtain CNA/LSPID information, they will think twice before seeking to secure it. Moreover, a unique identifier like a phone number when associated with a person's name and address is worthy of privacy protection. There is no need to change the current law and practice concerning access to this information.
  3. A centralized national database registry of Internet subscribers would allow law enforcement agencies to routinely trace an IP address back to the registered user rather than requesting this information from an ISP. If carried out, this proposal would obliterate any expectation of privacy and anonymity on the Internet.

  4. Many people have multiple e-mail accounts, both at home and at work. It is also not uncommon for people to close accounts with one ISP and create new ones with another provider offering a better deal. The logistics of creating and maintaining a comprehensive national database of up-to-date e-mail customer account information looks unworkable and also represents a drain on resources better used elsewhere.

  5. In addition to the belief that the creation of this database would further conscript the private sector into surveillance must be added concern about the proliferation of government databases containing information about Canadians.

  6. This proposal should not be adopted. There has been no clear justification of need on the basis that the present means of collecting subscriber information are inadequate, or that such a database will actually work and not be circumvented by criminals.

  7. The consultation document also suggests that all service providers be obliged by law to collect, verify and maintain a record of the identity and address of all their subscribers. This would include an obligation on those selling pre-paid cellphones or phone cards to collect (and communicate to ISPs) people's sensitive information, such as driver's license and credit card numbers, before making the sale. This would be a gross invasion of privacy.

G. E-mail Interception

  1. These questions should have been put to Canadians directly during the consultation process:

    • Should it be lawful to open an e-mail account in Canada without the client providing basic personal information for each e-mail address?
    • What are the appropriate kinds of personal information that could be collected by Canadian ISPs?
    • What degree of on-line anonymity would be permissible under the proposed amendments?
    • Would anonymous re-mailing of e-mail within Canada remain lawful?
    • Would encrypted e-mail be permitted within Canadian borders and, if so, on what terms?
  2. An e-mail, which can contain text, sound and graphics files, is a rich source of intimate personal information about the sender and, potentially, about the recipient. The Alberta courts have affirmed that the recipient of the content of an e-mail enjoys a Charter-based reasonable expectation of privacy in that communication36. Existing standards respecting interception of private communications should apply to e-mail interception. The issue of how much lower the expectation of privacy is in the case of an e-mail header was left unanswered by R v. Weir.

H. Other Topics Introduced by respondents

  1. Nowhere does the consultation document indicate that accountability measures are being contemplated.

  2. The proposals in the consultation document call for high levels of trust by Canadians in our law enforcement and intelligence communities, without offering corresponding evidence that this kind of legal change is needed.
  3. Broad judicial and other oversight mechanisms should be built into the lawful access proposal to ensure public accountability, transparency and scrutiny.

  4. An oversight body should be established to enhance public confidence. This organization should require routine reporting of lawful access measures undertaken by law enforcement as well as providing an assessment of the efficiency of these measures.

  5. Independent oversight of the nature and frequency of use of any new lawful access powers is essential, subject to the proper protection of law enforcement interests. A body such as the Security and Intelligence Review Committee of Parliament should be considered for oversight of any new lawful access to e-mail and other electronic communications data.