Internet service providers would have to make it possible for police and intelligence officers to intercept online communications and get personal information about subscribers, under bills tabled Thursday.
"We must ensure that law enforcement has the necessary tools to catch up to the bad guys and ultimately bring them to justice. Twenty-first century technology calls for 21st-century tools," said Justice Minister Rob Nicholson as he announced the new bills with Public Safety Minister Peter Van Loan at a news conference in Ottawa.
The bills are intended to modernize the Criminal Code and help law enforcement officials chase those suspected of using the internet and other new technologies to communicate and commit crimes, as well as maximize the ability to conduct international investigations, Nicholson said.
Targets 'safe havens'
One bill, announced by Van Loan, would require telecommunications and internet service providers to:
- Install and maintain "intercept-capable" equipment on their networks.
- Provide police with "timely access" to personal information about subscribers, including names, address and internet addresses, without the need for a warrant.
Van Loan said the bill won't provide new interception powers to police, but simply update the legal framework designed "in the era of the rotary telephone."
He noted that police can already get the authority to intercept communications, but the network is often incapable of allowing such interception.
"Criminals, child pornographers, organized crime members and terrorists are aware of these interception safe havens. They identify them and gravitate towards them to exploit them and continue their criminal activities undetected, out of the reach of the investigative powers of law enforcement."
Van Loan added that internet service providers are currently not required to provide subscriber information to police and the Canadian Security Intelligence Agency (CSIS), and may be unwilling to provide such data without a police warrant, slowing down the investigation of crimes such as child sexual exploitation or online theft.
ISPs must preserve data
The other bill, introduced by Nicholson, would:
- Allow law enforcement officials to obtain transmission data (routing information) that is sent or received via telephone or internet if authorized by a production order or warrant.
- Require telecommunications companies to keep data related to specific communications or subscribers if that information is needed in an investigation and requested via a preservation order.
- Allow police to remotely activate existing tracking devices that are found in some cars and in devices such as cellphones.
- Make it a criminal offence for two or more people to agree to or arrange child sexual exploitation by means of telecommunications.
- Make it illegal to possess a computer virus for the purpose of committing an offence of mischief, even if the virus has not yet spread.
Internet surveillance in other countries
The Regulation of Investigatory Power Act of 2000 includes provisions to require ISPs to install systems to aid investigators in tracking electronic communications.
The USA PATRIOT Act of 2001 expanded wiretaps to internet connections. The Bush administration authorized the National Security Agency to conduct domestic wiretaps without a warrant in 2001, possibly earlier. The Protect America Act of 2007 and FISA Amendments Act of 2008 extended that authority.
The Surveillance Devices Bill of 2004 allows Australian Federal Police to obtain warrants for the use of data, optical, listening and tracking surveillance devices. The Intelligence Services Act of 2001 covers the use of surveillance devices by the country's security agencies.
The Search and Surveillance Powers Bill was introduced in September 2008 to update the surveillance powers and procedures New Zealand's law enforcement agencies.
Sweden's parliament approved new laws in June 2008 to allow the country's intelligence bureau to track sensitive words in international phone calls, faxes and emails without a court order. The law took effect in January 2009.
Nicholson said the government believes the proposed legislation strikes an "appropriate balance" between law enforcement's investigative powers to protect public safety and the privacy and rights and freedoms of Canadians.
Law enforcement officials at the news conference praised the bill.
Calgary deputy chief of police Murray Stooke said police have been requesting the modernization of laws related to interception of communications for a decade. He added that the government consulted broadly with Canadians and interest groups before introducing the new legislation.
"We do understand that the privacy concerns of Canadians must be respected," he added, "but at the same time, we have a growing gap in terms of our capacity [to investigate crimes]."
However, University of Ottawa law professor Michael Geist wrote in his blog Thursday that the bills are "pretty much exactly what law enforcement has been demanding and privacy groups have been fearing. It represents a reneging of a commitment from the previous Public Safety Minister on court oversight and will embed broad new surveillance capabilities in the Canadian internet."
Cost to ISPs
Tom Copeland, head of chair of the Canadian Association of Internet Providers (CAIP), which represents dozens of smaller Canadian ISPs, said Thursday he fears the bill requiring internet-tapping capability could put some of his members out of business.
Van Loan said the companies themselves will have to pay for new equipment to meet the requirements, although the government will provide "reasonable compensation" when retrofits to existing hardware are needed.
The companies will have 18 months to make the changes, but there will be a three-year exemption for those with less than 100,000 subscribers.
But even that may not be enough time for some small providers, as they usually buy used, older network equipment that wouldn't be tappable, he said. Buying that new equipment could cost $15,000, and even if the government covers half, the remainder would be a "significant burden," Copeland said.
"I know a lot of providers who couldn't come up with the other half – it's just not the margins we have."
Larger internet service providers such as Bell also expressed concerns.
Spokeswoman Jacqueline Michelis said in an email that the company "has long been committed to working with law enforcement agencies to find effective and efficient solutions for their legitimate surveillance needs," but policing costs shouldn't be downloaded to one particular industry.
"Other funding mechanisms must be found," Michelis said.
Copeland said that with respect to providing subscriber information without a warrant, he is glad the bill brings some "clarity and consistency" to the issue. Previously, he said, ISPs were unsure whether providing that information would violate the Privacy Act and leave the companies vulnerable to a lawsuit.
He said the other bill introduced Thursday represents no real change to ISPs.
Rogers Communications participated in consultations during the drafting of the bills and now that they have been tabled, will study them and provide feedback to the government, said Nancy Cottenden, director of communications for the company, in an email.