Lawful Access – Consultation Document

Introduction

Lawful Access is an important and well-established technique used by law enforcement and national security agencies to conduct investigations. In the context of telecommunications in Canada, it consists of the interception of communications and search and seizure of information carried out pursuant to legal authority as provided in the Criminal Code, the Canadian Security Intelligence Service Act, and other Acts of Parliament such as the Competition Act. These Acts provide law enforcement and national security agencies with powers to intercept communications and search and seize information in a manner consistent with the rights and freedoms guaranteed in the Canadian Charter of Rights and Freedoms, particularly the right to be secure against unreasonable search and seizure. (Further details regarding interception and search and seizure can be found in, respectively, Appendix 1 and Appendix 2.)

For law enforcement and national security agencies, lawful access is an essential tool in the prevention, investigation and prosecution of serious offences and the investigation of threats to the security of Canada.  Lawfully authorized interception and the search and seizure of documentation, computer data, and other information is used frequently by law enforcement agencies to investigate serious crimes such as drug trafficking, child pornography, murder, money laundering, price fixing and deceptive telemarketing.  National security agencies utilize lawfully authorized interception to investigate terrorist and other threats to national security. According to the Solicitor General’s Annual Report on the Use of Electronic Surveillance, the conviction rate is in excess of 90% in those cases where lawful interception evidence is used or adduced in court.

Clearly, it is important to maintain the principle and powers of lawful access. The challenge is to do so in the face of rapid technological change and in a manner consistent with the Canadian Charter of Rights and Freedoms.

A Rapidly Evolving Environment

Modern telecommunications and computer networks such as the Internet are a great source of economic and social benefits, but they can also be used in the planning, coordination, financing and perpetration of crimes and threats to public safety and the national security of Canada.

These rapidly evolving technologies pose a significant challenge to law enforcement and national security agencies that require lawful access to communications and information, as these technologies can make it more difficult to gather the information required to carry out effective investigations.

While providers of certain wireless services, such as Personal Communications Services, have since 1996 been required to have facilities capable of lawful access pursuant to a licensing obligation under the Radiocommunications Act, there are currently no similar obligations for other providers.

Working Definition - "Service Provider"
means a person who owns or operates a transmission facility that is used by that person or another person to provide telecommunications services to the public in Canada.

The new competitive telecommunications market has seen many new entrants along with new services offered using new technologies, and these often raise problems for lawful access. Today, wireline providers are joined in the communications market by a variety of wireless providers and a large number of Internet service providers, resulting in a complex environment in which law enforcement and national security agencies must carry out their investigations.

A number of technological developments that affect lawful access have emerged in recent years. These include:

Wireline communications:

Law enforcement and national security agencies have conducted lawful investigations with the assistance of wireline service providers for many years. However, advanced service options and calling features have created new challenges for investigators.

Wireless communications:

The rapid expansion in the use of wireless communication devices like cellular telephones, digital wireless phones such as Personal Communications Services and satellite-based communications can pose significant challenges if the infrastructure supporting these devices does not include lawful access capabilities. The rate at which new wireless technologies and services are introduced in the marketplace makes it very difficult for law enforcement and national security agencies to sustain their technical ability to lawfully intercept communications. Moreover, the global nature of these technologies can create significant jurisdictional problems in criminal and terrorist investigations.

The Internet:

The Internet is an amalgamation of over 135,000 networks around the world, all of which operate using packet switching and can exchange and share information. This "network of networks" has no centralized physical location or control. The technology used for Internet communication, the need for sophisticated equipment to lawfully intercept Internet communications and the lack of provisions that would require Internet service providers to implement procedures for lawful intercept capabilities, have created difficulties for investigators.

As information and communications flow more easily around the world, they also challenge existing legal provisions, agreements and techniques. Borders are no longer boundaries to this flow, and criminals are increasingly located in places other than where their acts produce their effects.  In the face of these developments, law enforcement and national security agencies need modern and effective capabilities to support their investigative or intelligence gathering efforts. Legislative proposals are being considered to bring the law into accordance with the current state of telecommunications technology. To contribute to the development of this legal framework, and to help law enforcement and national security agencies navigate this new environment, partnerships with Canadian industry are more important than ever and must be consistently fostered and maintained.

The Council of Europe Convention on Cyber-Crime

The Council of Europe Convention on Cyber-Crime is an international treaty that provides signatory states with legal tools to help in the investigation and prosecution of computer crime, including Internet-based crime, and crime involving electronic evidence.  As a permanent observer to the Council of Europe, Canada was invited to participate in the negotiation of the Convention.  As of August 2002, 33 countries had signed the Convention, including Canada and most of its G8 partners.

The Convention calls for the criminalization of certain offences relating to computers, the adoption of procedural powers in order to investigate and prosecute cyber-crime, and the promotion of international cooperation through mutual legal assistance and extradition in a criminal realm that knows no borders.  The Convention will help Canada and its partners fight crimes committed against the integrity, availability and confidentiality of computer systems and telecommunications networks and those criminal activities such as on-line fraud or the distribution of child pornography over the Internet that use such networks to commit traditional offences. Most of the required offences and procedures already exist in Canada.  However, before Canada can ratify the Convention and give it effect, the Criminal Code would need to be amended to include:

  • provisions for a production order;
  • provisions for a preservation order; and
  • an offence in relation to computer viruses that are not yet deployed.

Complementary or further amendments could be made to other existing laws , such as the Competition Act, in order to modernize them in accord with the Convention, notably in the areas of real-time tracing of traffic data (see section on Specific Production Orders below) and interception of e-mail.

Proposals regarding these amendments are outlined and explained below.

Public Policy Objectives

The Government's approach recognizes the need for effective measures that balance the rights, privacy, safety, security and economic well being of all Canadians. To realize their public safety mandates, law enforcement and national security agencies need to maintain their lawful access capabilities in a manner that continues to respect the Canadian Charter of Rights and Freedoms.

Consistent with the pledge in the 2001 Speech from the Throne to provide modern tools to deal with cyber-crime, these proposals are intended to update the existing legal framework to help law enforcement and national security agencies address the challenges posed by advanced communications and information technologies.

The public policy objectives of this process are to maintain lawful access capabilities for law enforcement and national security agencies in the face of new technologies and to preserve and protect the privacy and other rights and freedoms of all people in Canada. In striving to attain these goals, it is essential to ensure that no competitive disadvantages are placed on Canadian industry and that the solutions adopted do not place an unreasonable burden on the Canadian public.

The Consultation Process

The Department of Justice Canada, in collaboration with the Portfolio of the Solicitor General of Canada and Industry Canada, are examining the various options available to address the challenges posed to lawful access in the context of modern telecommunications technology and are carrying out consultations to inform their efforts.

The purpose of this document is to provide a range of stakeholders, including the provinces and territories, law enforcement and national security agencies, telecommunications and related industry representatives, civil liberties organizations and the legal community, with an opportunity to consider proposals to update Canada's  lawful access provisions.  The proposals address requirements stemming from three primary needs:

  • (1) the need to bring the provisions of the law into concordance with new telecommunications technology;
  • (2) the need for all telecommunications service providers to ensure that the technical capability in their facilities permits lawful access by law enforcement and national security agencies; and
  • (3) the need for Canada to adopt statutory measures that will permit ratification of the Council of Europe Convention on Cyber-Crime. These proposals are the result of a comprehensive legal review that began in October 2000.

The proposals in this document are points of departure for discussion and input on any or all of the proposals is welcomed.

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