Lawful Access – Consultation Document

Legislative Proposals

The following proposals address the requirement for service providers to provide the technical capability for lawful access, as well the need to bring the Criminal Code in line with new telecommunications technology and make necessary amendments to the Criminal Code and other statutes, such as the Competition Act, that would allow Canada to ratify the Council of Europe Convention on Cyber-Crime.

Several of Canada's international partners have already updated their legislation to ensure that their law enforcement and national security agencies maintain their lawful access capabilities.  Modernizing our legislative framework is needed for Canada to continue to be an effective partner internationally and to address the challenges posed by the current state of telecommunications technology.

Infrastructure Capability

Requirement to Ensure Intercept Capability

There is currently no legislative mechanism in Canada that can be used to compel service providers to develop or deploy systems providing interception capability, even if a legal authorization is obtained by law enforcement or national security officials to intercept the communications of a specific target.

It is proposed that all service providers (wireless, wireline and Internet) be required to ensure that their systems have the technical capability to provide lawful access to law enforcement and national security agencies.  The implementation and maintenance of this capability is the focus of this section.

Working Definition - Transmission Facility
means any wire, cable, radio, optical or other electromagnetic system, or any other (similar) technical system, used for the transmission of information between network termination points.

The central tenet of the proposal is that service providers would be required to have the technical capability to provide access to the entirety of a specific telecommunication transmitted over their facilities, subject to a lawful authority to intercept. This would include the content and the telecommunications-associated specific data associated with that telecommunication.

A new law addressing the requirement for service providers to have intercept-capable transmission apparatus could set out the following:

  • General operational requirements describing the interception capability;
  • Regulation-making authority to specify the details of the functional requirements;
  • A capacity for forbearance from certain obligations; and
  • A compliance mechanism.
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