Lawful access FAQs: Clearing confusion about 'surveillance' proposals

Critics have been raising the alarm about federal legislation that would give police new powers and tools to investigate crimes involving the internet and new technologies such as smartphones even though the legislation hasn't yet been introduced.

"The government is set to ram through a new set of electronic surveillance laws that will allow authorities to access [the] private information of any Canadian, at any time, without a warrant," warns a campaign by Open Media, a Vancouver group that lobbies on behalf of internet users.

The campaign features an adin whicha police officer eavesdrops on a young woman's cellphone conversation. "You wouldn't let a police officer do this without a warrant," the ad says. "So why should your online communication be any different?"

Tom Stamatakis, president of the Canadian Police Association, called the ad "misleading to Canadians" during an interview on CTV News.

Meanwhile, Public Safety Minister Vic Toews said the government is committed to reintroducing "lawful access." But he has said any claims that private communications will be intercepted without a warrant are "outrageous" and that the legislation will provide for "appropriate judicial oversight in respect of access to private conversation."

So what's the truth in all this confusion?

What is "lawful access"?

"Lawful access" is the name given to a series of proposed updates to the criminal code that would give police additional powers and tools to conduct investigations involving new technologies such as smartphones and the internet. Federal governments have repeatedly introduced such proposals in the past decade, most recently Bill C-50, Bill C-51 and Bill C-52 during the last session of Parliament. However, the bills died when the last election was called this past spring.

Why are these types of proposals being put forward?

Tom Stamatakis, president of the Canadian Police Association, told CBC's Spark that police have long advocated for changes to the criminal code "which include modernizing certain provisions so that it reflects the kind of technology that we're dealing with today."

Without those updates, he said, police face litigation around what police can and can't do, causing investigative delays, and sometimes have no way to get access to the information they need.

On Oct. 3, Public Safety Minister Vic Toews said his government believes the lawful access legislation is "very important." "If you look at the Criminal Code today, it talks about telegraphs, etc.," he said. "It has very little to deal with [the] revolution that we've had in technology. This has been a serious handicap for police."

He added that the legislation is "in fact very necessary in order to deal with, especially crimes like international organized crime and child sexual exploitation."

What do police say they want?

Murray Stooke, deputy chief of the Calgary Police Service and former vice-chair of the Canadian Association of Chiefs of Police told CBC's Spark that law enforcement is calling on the government to create a law that requires telecommunications providers to make sure when they bring on a new technology, it is interceptable by police i.e. "back doors" need to be built into the technology.

"In some cases now the technology's new," he said. "We'll come with the court order and we can't be given access because technically there's no way to give us access."

They also want to require internet service providers to hold onto information that could be relevant to their investigation. At the moment, Stooke said, it takes 24 hours for police to get a warrant.

"Some of this evidence is perishable," he said. "It can be gone within that time."

Stooke gave the example of a homicide in Calgary a couple of years ago, in which a man pulled out a cellphone and appeared to send a text message before pulling out a gun and killing someone. In that case, he said, police believe the information in the text message was relevant to the investigation. He did not mention whether police were able to get the information in the end.

How much of that was in the most recent lawful access bills?

The most recent lawful access bills, the former C-50, C-51 and C-52 were introduced March 10, 2010, during the previous session of Parliament. They included provisions to deal with all the situations cited by Stooke:

• Bill C-52 would require internet service providers to have infrastructure that would allow law enforcement agents to intercept internet communications of their customers.
• Bill C-51 would allow police to get orders that would compel other parties to preserve electronic evidence.

Do police want the right to get information without warrants?

According to both Stamatakis and Stooke, they do not.

Stamatakis spoke of the need to consider the rights of people who use technology lawfully to be able to expect their privacy to be respected.

"I'm not sure that I would go so far as to say that we should be able to access info without a warrant," he told Spark. "All of us have taken the approach that we don't have an issue with having to go before a judge and say, 'Look, we need to have access to this information for this reason.'"

Stooke said police have not asked to access people's communications records.

Would the previous lawful access proposals have given police powers to get information without warrants?

Yes, they would have given police the power to get internet customers names, addresses, phone numbers, email addresses, internet protocol addresses and a series of device identification numbers from internet service providers. Currently, a warrant is required to force ISPs to disclose that information, although they can choose to provide it voluntarily.

Is that information private?

Steve Anderson, executive director of Open Media, indicated in a CTV interview on Oct. 3 that he considers that provision to "provide access to the private information of any Canadian at any time without a warrant."

However, the government has indicated it doesn't consider that information to be private.

"Our proposed approach of linking an internet address to subscriber information is on par with the phone book linking phone numbers to an address," Toews said in question period in September.

In October, he added that the proposals are compliant with the Canadian Charter of Rights and Freedoms.

What could police do with that information?

Michael Geist, a University of Ottawa researcher who holds a Canada Research Chair in internet and e-commerce law, said the information covered "goes well beyond" what is in a phone directory.

The ability to link those electronic identifiers with other data "will often open the door to a detailed profile about an identifiable person," he said. For example, police could identify individuals in an online chat forum who are anonymous or using online nicknames.

Critics such as Geist are concerned about the fact that without the need for a warrant, there is no mechanism for oversight or for ensuring the provision is only used under circumstances in which they are justified.

Would the provisions allow police to access private communications without a warrant?

During question period in September, Toews said allegations that private communications would be intercepted without a warrant were "outrageous claims" and "a complete fabrication."

He later reiterated, "What this will not allow for is access to private communications without a warrant."

Technically, that is true because communications in places such as internet chat rooms are public. However, it will allow people to be easily identified during internet communications where they normally would not expect to be identified, and might therefore consider to be private.

The Ottawa-based Canadian Internet Policy and Public Interest Clinic has raised a number of concerns about that. It notes that due to the expectation of anonymity online, many people express political dissent and unpopular views or share highly personal information online.

"If police are allowed to strip individuals of their online anonymity without judicial authorization and under cover of secrecy, it is almost assured that such powers will be abused, and valuable free speech will be chilled," the group says in its online FAQ about lawful access.

It adds that the account subscriber may not necessarily be the person using the account, "Thus, innocent people could be targeted." That could occur if someone has an unsecured wireless connection that is used by someone else.

Is there anything else in the previous bills that would allow for warrantless surveillance?

David Fewer, director of the Ottawa-based Canadian Internet Policy and Public Interest Clinic, told CBC's Spark that the bills included a provision that would allow police to get court orders to obtain information from a third-party if they had a "reasonable suspicion" that it would be useful in an investigation rather than "reasonable grounds to believe" that a crime was being or would be committed.

"These kinds of orders will be useful for fishing expeditions you no longer need to worry about an active investigation or a real contribution to solving a crime here and now," he said.

Fewer added that our world is becoming increasingly wired, so that even appliances such as dishwashers are becoming capable of communication over the internet.

"These powers hook into that. They make all the information collected by that system available to police under fairly easy tests and sometimes no test at all All of this stuff is surveillance information. All of these things are tools in the toobox for undertaking police investigations and for finding information about Canadians and people who are of interest of police or people who are not of interest. To say these are not new interception powers is a little bit deceptive."

Is the government likely to reintroduce all the lawful access proposals included in the previous bills?

The government has committed multiple times to reintroducing lawful access legislation and hinted what could be included.

Most recently, Toews said on Oct. 3 in response to questions: " We're going to move ahead on the lawful access legislation which does not interfere with private conversations other than through a judicial warrant, but police will have certain ability to initiate investigations and then appropriately get some of this information."

In September, he mentioned the proposal that would allow police to get subscriber information and downplayed worries about it, suggesting that it will be reintroduced.

The government has not indicated that it will leave anything out, and this fall has reintroduced a number of previous bills from the previous session word-for-word, including the copyright bill and a bill with proposed changes to Canada's privacy legislation. The privacy bill includes a provision touching on lawful access that bars ISPs from revealing to their customers that police or government agencies have requested information about them.

However, it is impossible to know for sure what will be in the new lawful access legislation until it is actually introduced.