Canadian Government Introduces Mandatory ISP Level Surveillance Legislation

It’s a kind of surveillance that will involve absolutely no court oversight. If the past lawful access consultations were anything to go by, it seems that the Canadian government is directly defying the wishes of Canadians.

Michael Geist already has a review of the legislation. The new lawful access legislation is known as Investigative Powers for the 21st Century (IP21C). In a nutshell, this legislation allows police to bi-pass any hint or inclination of privacy and be allowed unfettered access to what you are doing online.

In terms of the actual ISP surveillance requirements. ISPs would be forced to install surveillance technology on their networks. Small ISPs would have a three year reprieve before they are forced to install similar technology as well. Additionally, ISPs would be forced to surrender their customer information and any identifying information about them on request. This would bi-pass the court system as no court order would be required to get ISPs to give up any personally identifiable information about them. What police are able to collect appears to follow the British proposed model where police won’t be able to see the contents of any communication, but who you are talking to, when and any other data regarding that communication along with what websites you visit, etc.

ISPs would additionally be forced to retain all data on its networks (it’s unclear for how long). Another provision is that it allows the police to obtain a tracking warrant (vaguely similar to the French model) that would allow police to remotely activate any tracking technology embedded into technology (such as recording cell phone conversations)

The legislation hasn’t been posted online yet, but a press release from the Public Safety Office confirms this legislation has been tabled.

“Evolving communications technologies like the Internet, cell phones, and PDAs (personal digital assistants) clearly benefit Canadians in their day-to-day lives,” said Minister Nicholson. “Unfortunately, these technologies have also provided new ways of committing crimes such as distributing child pornography. We must ensure investigators have the necessary powers to trace and ultimately stop crimes.”

“We must provide our law enforcement with the tools they need to keep our communities safe,” said Minister Van Loan. “High tech criminals will be met by high tech police. This is a great day for the victims and their families who have been long calling for these legislative changes, and those who work tirelessly every day to ensure that when there is a threat to safety police can intervene quickly.”

The press release also says, “Other countries, such as the United Kingdom, the United States, Australia, New Zealand, Germany and Sweden, already have similar legislation in place.”

As if one press release wasn’t enough, here’s another one:

The interception of communications is essential for investigating and prosecuting serious crime and combating terrorism. Police forces and the Canadian Security Intelligence Service (CSIS) require lawful access to communications in a number of contexts, including investigations into child sexual abuse, organized crime, drug trafficking, and terrorism.

Police forces and CSIS also require timely access to basic subscriber information as it is an essential tool for fighting crime and terrorism. Subscriber information refers to basic identifiers such as name, address, telephone number and Internet Protocol (IP) address, e-mail address, service provider identification and certain cell phone identifiers. These basic identifiers are often crucial in the early stages of an investigation, and without this basic information, police forces and CSIS often reach a dead-end as they are unable to obtain sufficient information to pursue an investigative lead or obtain a warrant.

Currently, there is no legislation specifically designed to require the provision of this information to police forces and CSIS in a timely fashion. As a result, the practices of releasing this information to police forces and CSIS vary across the country: some service providers release this information to law enforcement immediately upon request; others provide it at their convenience, often following considerable delays; while others insist on law enforcement obtaining search warrants before the information is disclosed. This lack of national consistency and clarity can delay or block investigations.

What’s particularly damning about the information we have seen so far is what “crimes” could someone commit before an investigation is warranted? That doesn’t appear to be available at this point.

What happened the last time lawful access was introduced in Canada? Plenty of public discussion including a YouTube parody known as Emily of the State. There was no shortage of criticism against what is effectively warrantless wiretapping in Canada. What’s stunning is that, in spite of the public effectively saying no to such laws, the federal government seems intent on introducing such legislation anyway. What ensuing PR war this will bring is unclear, but history suggests that the government lost a lot of support last time. How they can spin this successfully to somehow be positive PR is a mystery at this point.

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