LawBytes Podcast on State of Digital Law and Policy in Canada

In his most recent LawBytes podcast, University of Ottawa law professor Michael Geist takes a look at recent federal government digital policy initiatives:

"The Law Bytes podcast focuses intensively on Canadian legislative and digital policy developments and with another Parliamentary year in the books, this week’s episode takes a look back and take stock of where things stand. It features discussion on the implementation of the Internet streaming and news bills (C-11 and C-18) as well as an analysis of the current state of privacy, AI, online harms, and digital tax as found in Bills C-27, C-63, C-69, S-210 and C-27."

LawBytes Podcast on Future of the Canadian Radio-television and Telecommunications Commission

In the most recent LawBytes podcast, University of Ottawa law professor Michael Geist talks with Konrad von Finckenstein, former chair of the Canadian Radio-television and Telecommunications Commission (CRTC), the government agency that oversees and regulates broadcasting and telecommunications:

"The start of a new year often means a fresh start and for the CRTC, it meant welcoming a new chair, as Vicky Eatrides officially took over as chair a few days into 2023. Eatrides comes to the Commission at a particularly busy time with wireless competition concerns top of mind for many Canadians and the government set to ask the Commission to play a pivotal role in implementing Bills C-11 and C-18."

"Konrad von Finckenstein is someone who knows quite a bit about the challenges faced by new CRTC chairs, having served in the role from 2007 to 2012. He was recently appointed to the Order of Canada for his many contributions to public life and he joins me on the Law Bytes podcast to reflect on those experiences in the context of the CRTC. Our conversation reflects on what is involved in launching entirely new programs, ensuring public engagement, and developing policies that enjoy both public support and can withstand potential legal challenges."

Information about Bills C-11 and C-18 can be found on the Library of Parliament's LEGISinfo website:

• Bill C-11, An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts
• Bill C-18, An Act respecting online communications platforms that make news content available to persons in Canada

Recent Legislative Summaries from Library of Parliament

The Library of Parliament has recently published a number of legislative summaries if bills currently being debated.

• Legislative Summary of Bill C-7: An Act to amend the Criminal Code (medical assistance in dying)
• Legislative Summary of Bill C-10: An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts (preliminary version)
• Legislative Summary of Bill C-11: An Act to enact the Consumer Privacy Protection Act and the Personal Information and Data Protection Tribunal Act (preliminary version)
• Legislative Summary of Bill C-12: An Act respecting transparency and accountability in Canada's efforts to achieve net-zero greenhouse gas emissions by the year 2050
• Legislative Summary of Bill C-15: An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples (preliminary version)

Recent Library of Parliament HillNotes Blog Posts

HillNotes, the blog of the Library of Parliament in Ottawa, recently posted two new articles:

• Issues and Concerns Related to Digital Currencies: "The International Monetary Fund compared the excitement and unprecedented price increases of some digital currencies to historical speculative bubbles such as the tulip mania of the 1600s and the more recent dot-com bubble. In March 2018, the Group of Twenty Communique stated that digital currencies 'raise issues with respect to consumer and investor protection, market integrity, tax evasion, money laundering and terrorist financing,' and 'they could have financial stability implications.' Concerns related to digital currencies centre around their price volatility, links to criminal behaviour, and environmental impacts. However, many argue that digital currencies and their supporting technologies might also be used to reduce poverty."
• Net Neutrality in Canada: "The Canadian Radio-television and Telecommunications Commission (CRTC or the Commission) defines net neutrality as the general principle that 'all traffic on the Internet should be given equal treatment by' Internet service providers (ISPs) (...) On 23 May 2018, Parliament unanimously called on the Government of Canada, in its upcoming review of the [Telecommunications] Act, 'to explore opportunities to further enshrine in legislation the principles of neutrality in the provision and carriage of all telecommunications services.' On 28 June 2018, the Government requested the expert panel conducting the review to examine whether current legislation is well-positioned to protect net neutrality in the future. The panel is expected to table its final report in January 2020."

UK Government Asks Law Commission to Look at Online Trolling

The government of the United Kingdom has asked the Law Commission to launch a review of English laws about online trolling:

"The government has asked the Law Commission to review the laws around offensive communications and assess whether they provide the right protection to victims online."

"With research showing that nearly a third of UK internet users were on the receiving end of trolling, harassment or cyberbullying last year, the independent body will provide a robust review of the current laws and set out how they apply to online communications (...)"

"The Commission will analyse:

• How the Malicious Communications Act 1988 deals with offensive online communications 

• How the Communications Act 2003 deals with online communications  

• What 'grossly offensive' means and whether that poses difficulties in legal certainty  

• Whether the law means you need to prove fault or prove intention to prosecute offensive online communications  

• The need to update definitions in the law which technology has rendered obsolete or confused, such as the meaning of 'sender' 

• How other parts of the criminal law overlap with online communications laws "

New Law Library of Congress Reports on Encrypted Communications and Foreign Intelligence Gathering

In Custodia Legis, the blog of the Law Library of Congress in Washington, D.C., reported earlier this week on two recent comparative law reports published by the institution.

The first, Government Access to Encrypted Communications, "describes the law of 12 nations and the European Union on whether the government, pursuant to a court order or other government process, can require companies to decrypt encrypted communications or provide the government with the means to do so".

The other one is an updated version of an earlier report entitled Foreign Intelligence Gathering Laws that examines the legislation regulating the collection of intelligence in the European Union (EU) and Belgium, France, Germany, Netherlands, Portugal, Romania, Sweden, and the United Kingdom..

The Law Library of Congress is the world’s largest law library, with a collection of over 2.65 million volumes from all ages of history and virtually every jurisdiction in the world.

Library of Parliament Article on Computer Privacy and Security

The Library of Parliament's HillNotes blog published an article today called Computer Privacy and Security: Lawful and Unlawful Access that examines the challenges faced by law enforcement in investigating cybercrime.

The article explains the current legal environment and analyzes bills and court rulings from recent years that deal with the circumstances under which police may gain access to private computer information.

Earlier Library Boy posts on the topic include:

• Canadian Government Consultation on Lawful Access (September 14, 2007): "The purpose of this consultation is to provide a range of stakeholders - including police and industry representatives and groups interested in privacy and victims of crime issues - with an opportunity to identify their current views on possible approaches to updating Canada’s lawful access provisions as they relate to law enforcement and national security officials’ need to gain access to CNA [customer name and address] information in the course of their duties. The possible scope of CNA information to be obtained is later identified, but it should be noted from the outset that it would not, in any formulation, include the content of communications or the Web sites an individual visited while online."
• CIPPIC Paper on Government's Lawful Access Initiative (October 16, 2007): "This is a follow-up to the September 14, 2007 Library Boy post entitled Canadian Government Consultation on Lawful Access ... Yesterday, the Canadian Internet Policy and Public Interest Clinic (CIPPIC) at the University of Ottawa made its submission available. In its conclusions, CIPPIC remains highly sceptical of government arguments about the need for greater access to CNA information: 'Information identifying telecommunications subscribers can be highly sensitive given the electronic trail of publicly available and otherwise accessible data that individuals now leave about themselves on the internet and other digital devices as they go about their daily lives. For this reason, we submit that CNA information raises a 'reasonable expectation of privacy' on which a Charter challenge to laws permitting warrantless access could be based' ..."
• Canadian Government Re-Introduces Internet Surveillance Bills (November 2, 2010): "The federal government has re-introduced two bills in the House of Commons that would allow police and intelligence officials to intercept online communications and get personal information from Internet service providers. The government explains that the legislation targets child sexual predators, distributors of pornography and identity thieves. The bills also go after people who use the Internet to plan terrorist acts."
• Library of Parliament Comparison of Lawful Access Laws in Canada, US, UK and Australia (December 13, 2012): "The Library of Parliament recently posted an updated version of a paper comparing Canadian legislative proposals relating to lawful access to the situation in the UK, the USA and Australia. 'Lawful access' refers to a police investigative technique that allows for the interception of electronic communications during a lawful search (...) This background paper compares Bill C-30 [introduced in the Canadian Parliament in the first session of the 41^st Parliament] with similar legislation in these three countries. Major differences and similarities are highlighted, with particular reference to three aspects covered in the Canadian bill: interception capability, requests to TSPs for information about subscribers and tracking warrants. The comparison is a useful one because Bill C-30 is the latest of several significant Canadian initiatives that have dealt with lawful access and that have proposed consistently similar provisions."

Article on University of Toronto's Searchable Database of Edward Snowden Documents

This is a follow-up to the Library Boy post of March 6, 2015 entitled Canadians Create New Searchable Database of Edward Snowden Documents.

U of T News,  the news website of the University of Toronto, published an article yesterday about the Snowden Surveillance Archive, a database of all the publicly released classified documents leaked by former U.S. National Security Agency contractor Edward Snowden.

The Archive project was led by the university's Andrew Clement, a professor at the institution's "iSchool" (information studies):

"Launched in partnership with the Canadian Journalists for Free Expression, the archive is just one part of an international effort led by the iSchool's Clement to develop constructive responses by iSchools around the world to the growing challenge of mass state surveillance."

"A public statement endorsed by Clement and faculty at iSchools across North America calls for universities to: develop curriculum that addresses issues of mass state surveillance and prepare students to understand better the surveillance to which they are exposed; invite NSA and other government officials as guest course speakers to address issues of mass state surveillance and respond to student questions; and invite NSA whistleblowers and journalists who have covered the NSA disclosures as guest speakers to address issues of mass state surveillance and respond to student questions."

Canadians Create New Searchable Database of Edward Snowden Documents

George Raine, a recent graduate of the Faculty of Information’s Master of Information program at the University of Toronto, has created the Snowden Surveillance Archive, a searchable database of all the publicly released classified documents leaked by former U.S. National Security Agency contractor Edward Snowden.

 

The leaks reveal the widespread surveillance practices by security and espionage agencies in the US and allied countries.

Archive project partners are Canadian Journalists for Free Expression and the Politics of Surveillance Project at University of Toronto’s Faculty of Information. Funding came from The New Transparency: Surveillance and Social Sorting, a seven-year Major Collaborative Research Initiative funded by the Social Sciences and Humanities Research Council.

There are currently close to 400 documents in the Archive. The Archive website explains that these are “a small fraction of the estimated 50,000 documents Snowden turned over. Most of these will likely not be published, but as new documents are published, they will be added to the Archive.”
It is possible to search by program name, target, agency, classification and ordinary keyword.

Other groups such as the American Civil Liberties Union have released files that Snowden leaked to journalists in June 2013 but the Snowden Surveillance Archive claims it is the world’s first fully indexed and searchable collection of the files.

Many of the documents have been published by The Guardian, The New York Times, The Washington Post, Der Spiegel, Le Monde, El Mundo and The Intercept. In this country, the CBC has been shedding light on Canada-related files leaked by Snowden.

[Cross-posted to Slaw.ca]

Law Reform Commission of Ireland Issues Paper on Cyber-Crime and Cyber-Bullying

The Law Reform Commission of Ireland has released a discussion paper ("issues paper") on Cyber-crime affecting personal safety, privacy and reputation including cyber-bullying:

"The criminal law is important in this area, particularly as a deterrent, but civil remedies, including 'take-down' orders, are also significant because victims of cyber-harassment need fast remedies once material has been posted online. The Commission seeks the views of interested parties on the following 5 issues. "

"1. Whether the harassment offence in section 10 of the Non-Fatal Offences Against the Person Act 1997 should be amended to incorporate a specific reference to cyber-harassment, including indirect cyber-harassment (...);
2. Whether there should be an offence that involves a single serious interference, through cyber technology, with another person’s privacy (...) ;
3. Whether current law on hate crime adequately addresses activity that uses cyber technology and social media (...) ;
4. Whether current penalties for offences which can apply to cyber-harassment and related behaviour are adequate (...) ;
5. The adequacy of civil law remedies to protect against cyber-harassment and to safeguard the right to privacy (...)"

There was a related Library Boy post on October 13, 2014 entitled Updated Library of Parliament Legislative Summary of Cyberbullying Bill.

Updated Library of Parliament Legislative Summary of Cyberbullying Bill

The Library of Parliament recently updated its legislative summary of Bill C-13 known as the "cyberbullying bill":

"Bill C-13 deals with:

• the offence of non-consensual distribution of intimate images;
• offences committed by means of telecommunication; (...)"

"One aspect of the bill addresses cyberbullying, which has been in the news, particularly in relation to the high-profile cases of Rehtaeh Parsons and Amanda Todd. Rehtaeh Parsons attempted suicide in April 2013 (and was later taken off life support) after pictures of an alleged sexual assault were distributed which led to various types of bullying. Amanda Todd committed suicide in October 2012 after experiencing blackmail online and facing threats that topless pictures of her would be distributed on the Internet, a practice known as 'sextortion'."

"Also in October 2012, the federal, provincial and territorial ministers responsible for justice and public safety asked officials to look into potential gaps in the Code in relation to cyberbullying and the non-consensual distribution of intimate images. The resulting Report to the Federal/Provincial/Territorial Ministers Responsible for Justice and Public Safety: Cyberbullying and the Non-consensual Distribution of Intimate Images was published in June 2013 and included recommendations that are integrated into Bill C-13."

It is possible to follow the progress of the bill on the LEGISinfo website. LEGISinfo also includes links to background material and to parliamentary debates and committee reports on the proposed legislation.

The bill is set to pass third reading in the House of Commons after this Thanksgiving weekend before heading to the Senate.

2012 Annual Report on Use of Electronic Surveillance in Canada

The most recent issue of the Weekly Checklist of Canadian Government Publications features the 2012 annual report on electronic surveillance from Public Safety Canada. It was published in late August.

The report outlines the use of electronic surveillance of private communications by law enforcement agencies to assist in criminal investigations.

Under the Criminal Code, agencies must obtain judicial authorization before conducting the surveillance.The government is required to prepare and present to Parliament an annual report on the use of electronic surveillance.

The 2012 Annual Report covers a five-year period from 2008 to 2012. The Report includes new statistics for the period from January 1, 2012 to December 31, 2012, and updates the figures for the years 2008 to 2011.

Statistics are provided for things such as:

• the number of applications made for authorizations, or for renewal of authorizations;
• the number of applications granted with or without terms and conditions, as well as the number of applications that were refused;
• the number of persons identified in an authorization who were charged for various offences;
• the number of persons not identified in an authorization, but who were arrested or charged for various offences because they became known to peace officers as a result of authorized surveillance;
• the average time for which authorizations were issued and for which renewals were granted;
• the number of authorizations valid for more than 60, 120, 180 and 240 days;
• the number of notifications given to people who had private communications intercepted;
• the types of offences for which authorizations were granted;
• a description of the classes of places set out in authorizations, and the number of authorizations granted for each class of place;
• a general description of the methods of interception used;
• the number of proceedings in which intercepted communications were entered as evidence; and
• the number of investigations in which information from intercepted communications was used but the communication itself was not entered as evidence.

The Weekly Checklist includes a listing of titles made available by the Parliament of Canada, federal departments, and Statistics Canada to the Depository Services Program for distribution to a network of Depository Libraries in Canada and abroad.

2012-2013 Annual Report of the Communications Security Establishment Commissioner

The most recent Report of the Communications Security Establishment Commissioner, the Honourable Robert Décary, Q.C., was tabled in Parliament yesterday.

The Communications Security Establishment (CSE) is Canada's national cryptologic agency working under the control of the Department of National Defence. Its code-breakers protect the Government of Canada's IT infrastructure from hostile attacks and provide foreign signals intelligence services, including the interception, decoding, and analysis of phone calls, e-mails and other electronic communications of Canada's international adversaries. It also provides technical and operational assistance to federal law enforcement and security agencies.

The Commissioner is the official watchdog over the agency's activities.

The news media concentrated on Décary's finding that the CSE may have been intercepting communications from Canadians. The CSE is legally prohibited from eavesdropping on Canadians. The Commissioner was unable to draw any definitive conclusions.

Media coverage includes:

• Watchdog says spy agency might have illegally eavesdropped on Canadians (Globe and Mail, August 22, 2013)
• Canadians may be victims of illicit spying (Ottawa Citizen / Postmedia News, August 22, 2013)
• Security watchdog says agency may be spying on Canadians (CBC / Canadian Press, August 22, 2013)
• Watchdog raises flags on Canada’s eavesdropping (Wall Street Journal, August 22, 2013)
• In wake of spying allegations, Communications Security Establishment Canada insists it didn’t break law (Canada.com, August 22, 2013)
• Espionnage de Canadiens: le NPD veut des détails (La Presse, 22 August 2013)

Library of Parliament Comparison of Lawful Access Laws in Canada, US, UK and Australia

The Library of Parliament recently posted an updated version of a  paper comparing Canadian legislative proposals relating to lawful access to the situation in the UK, the USA and Australia.

"Lawful access" refers to a police investigative technique that allows for the interception of electronic communications during a lawful search:

"During the first session of the 41^st Parliament, in February 2012, the Minister of Public Safety introduced a bill on 'wiretapping' in the era of new electronic technologies (...) "

"Bill C-30 responds to the concerns of law enforcement and national security agencies that new technologies – such as Internet communications – often present obstacles to the lawful interception of communications. The bill has two parts, each responding to one of its central objectives.

• Part 1 creates the Investigating and Preventing Criminal Electronic Communications Act, a new law governing telecommunications service providers (TSPs).
• Part 2 amends the Criminal Code and several other acts in order to modernize investigative and interception techniques available to law enforcement and in order to modernize certain offences."

"As well, Bill C-12, introduced several months before Bill C-30, amends the Personal Information Protection and Electronic Documents Act to expand the circumstances in which law enforcement agencies can ask private organizations to disclose personal information without the consent of the individual concerned. The legislative debate on Bill C-30 and its predecessors has largely focused on privacy. Other important considerations include a new requirement that TSPs (including Internet service providers) put in place interception capabilities, the technical standards for and costs of these capabilities, and the need for new lawful access rules. The debate on these issues continues (...)"

"This background paper compares Bill C-30 with similar legislation in these three countries. Major differences and similarities are highlighted, with particular reference to three aspects covered in the Canadian bill: interception capability, requests to TSPs for information about subscribers and tracking warrants. The comparison is a useful one because Bill C-30 is the latest of several significant Canadian initiatives that have dealt with lawful access and that have proposed consistently similar provisions."

The Library of Parliament published a legislative summary of Bill C-30 in February 2012.

Earlier Library Boy posts on the topic include:

• Canadian Government Consultation on Lawful Access (September 14, 2007): "The purpose of this consultation is to provide a range of stakeholders - including police and industry representatives and groups interested in privacy and victims of crime issues - with an opportunity to identify their current views on possible approaches to updating Canada’s lawful access provisions as they relate to law enforcement and national security officials’ need to gain access to CNA [customer name and address] information in the course of their duties. The possible scope of CNA information to be obtained is later identified, but it should be noted from the outset that it would not, in any formulation, include the content of communications or the Web sites an individual visited while online."
• CIPPIC Paper on Government's Lawful Access Initiative (October 16, 2007): "This is a follow-up to the September 14, 2007 Library Boy post entitled Canadian Government Consultation on Lawful Access ... Yesterday, the Canadian Internet Policy and Public Interest Clinic (CIPPIC) at the University of Ottawa made its submission available. In its conclusions, CIPPIC remains highly sceptical of government arguments about the need for greater access to CNA information: 'Information identifying telecommunications subscribers can be highly sensitive given the electronic trail of publicly available and otherwise accessible data that individuals now leave about themselves on the internet and other digital devices as they go about their daily lives. For this reason, we submit that CNA information raises a 'reasonable expectation of privacy' on which a Charter challenge to laws permitting warrantless access could be based' ..."
• Telecoms Fight Canadian Government Over E-Surveillance Costs (April 4, 2008): "The University of Ottawa's Michael Geist draws attention to documents obtained by Canwest News Service reporters that reveal a behind-the-scenes tug-of-war between industry and the federal government over who should bear the costs of electronic surveillance."
• 2007 Annual Report on Use of Electronic Surveillance in Canada (May 20, 2009): "The report [from Public Safety Canada] outlines the use of electronic surveillance of private communications by law enforcement agencies to assist in criminal investigations. Under the Criminal Code, agencies must obtain judicial authorization before conducting the surveillance. The government is required to prepare and present to Parliament an annual report on the use of electronic surveillance. The 2007 Annual Report covers a five-year period from 2003 to 2007."
• Canadian Government Re-Introduces Internet Surveillance Bills (November 2, 2010): "The federal government has re-introduced two bills in the House of Commons that would allow police and intelligence officials to intercept online communications and get personal information from Internet service providers. The government explains that the legislation targets child sexual predators, distributors of pornography and identity thieves. The bills also go after people who use the Internet to plan terrorist acts."

Library of Parliament Legislative Summary of Investigative Powers for the 21st Century Act

The Library of Parliament has published its Legislative summary of Bill C-51: Investigative Powers for the 21st Century Act:

"The purpose of the bill is to modernize certain offences in the Criminal Code (the Code) and the Competition Act to take into account new communications technologies and to equip law enforcement agencies with new investigative tools that are adapted to computer crimes. To facilitate collaboration with foreign law enforcement agencies, the bill also amends the Mutual Legal Assistance in Criminal Matters Act. According to the Department of Justice, the new investigative powers within the proposed legislation give law enforcement agencies the ability to address organized crime and terrorism activities online by:

• enabling police to identify all the network nodes and jurisdictions involved in the transmission of data and trace the communications back to a suspect. Judicial authorizations would be required to obtain transmission data, which provides information on the routing but does not include the content of a private communication;
• requiring a telecommunications service provider to temporarily keep data so that it is not lost or deleted in the time it takes law enforcement agencies to return with a search warrant or production order to obtain it;
• making it illegal to possess a computer virus for the purposes of committing an offence of mischief; and
• enhancing international cooperation to help in investigating and prosecuting crime that goes beyond Canada's borders."

"Bill C-51 is identical to Bill C-46, introduced in the House of Commons during the 2nd Session of the 40^th Parliament on 18 June 2009, with the exception that it does not contain provisions related to offences against children. Such provisions are proposed in this parliamentary session in Bill C-54, An Act to amend the Criminal Code (sexual offences against children). The proposed legislation complements Bill C-52, An Act regulating telecommunications facilities to support investigations, and Bill C-50, An Act to amend the Criminal Code (interception of private communications and related warrants and orders), as these bills address different aspects of a proposed lawful access regime ..."

"The bill aims to update Canadian criminal law. More specifically, the principal amendments in the bill:

• provide that hate propaganda offences can be committed by any means of communication and including making hate material available (clause 5);
• create the offence of possession of a computer virus for the purpose of committing mischief (clause 10);
• make it possible for law enforcement agencies to make a demand or obtain a court order for the preservation of electronic evidence (clause 13);
• creating new judicial production orders for obtaining data relating to the transmission of communications or data for tracking a thing or individual (clause 13);
• create warrants for obtaining transmission data in real time and for the remote activation of tracking devices in certain types of technologies (clause 17);
• modernize the deceptive marketing practices offences in the Competition Act (clauses 24 to 26); and
• amend the Mutual Legal Assistance in Criminal Matters Act so the new production orders can be used by Canadian authorities who receive assistance requests from other countries (clause 32)."

It is possible to follow the progress of the bill via the LEGISinfo website.

See the related Library Boy post of February 3, 2011 entitled Library of Parliament Legislative Summary of Improving Access to Investigative Tools for Serious Crimes Act.

Library of Parliament Legislative Summary of Improving Access to Investigative Tools for Serious Crimes Act

The Library of Parliament recently made available its Legislative Summary of Bill C-50: An Act to amend the Criminal Code (interception of private communications and related warrants and orders):

"Bill C-50 amends the Criminal Code (the Code) with respect to the interception of private communications, tracking devices and telephone number recorders. It aims to facilitate the use of electronic surveillance techniques by law enforcement agencies and make such use more transparent, to a certain extent. Its provisions should be read in conjunction with those of bills C-51 and C-52, which also deal with electronic surveillance."

It is possible to follow the progress of the bill via the LEGISinfo website.

Earlier Library Boy posts on the topic of electronic surveillance include:

• List of Electronic Surveillance Laws in the U.S. (December 22, 2005): "For Canadian material, one can have a look at the lawful access section of the CIPPIC website. CIPPIC is the Canadian Internet Policy and Public Interest Clinic based at the University of Ottawa."
• Canadian Bar Association Worried About ISP Surveillance (July 8, 2006): "The Canadian Bar Association appears concerned that Internet service providers have been putting into place the technical capacity to monitor their customers' communications without proper authorization."
• Update on Canadian Internet Surveillance Proposals (October 30, 2006): "University of Ottawa law prof and Toronto Star columnist Michael Geist has published a piece about the state of the federal government's lawful access initiative. The idea behind lawful access is to provide Canada law enforcement with new, more sophisticated electronic surveillance tools to prevent and fight organized crime, money laundering and terrorist activities. Geist analyzes various internal government documents recently obtained under the Access to Information Act that show how authorities are attempting to deal with the initial negative public reaction to the proposals to expand police powers."
• Canadian Government Consultation on Lawful Access (September 14, 2007): "The purpose of this consultation is to provide a range of stakeholders - including police and industry representatives and groups interested in privacy and victims of crime issues - with an opportunity to identify their current views on possible approaches to updating Canada’s lawful access provisions as they relate to law enforcement and national security officials’ need to gain access to CNA [customer name and address] information in the course of their duties. The possible scope of CNA information to be obtained is later identified, but it should be noted from the outset that it would not, in any formulation, include the content of communications or the Web sites an individual visited while online."
• CIPPIC Paper on Government's Lawful Access Initiative (October 16, 2007): "This is a follow-up to the September 14, 2007 Library Boy post entitled Canadian Government Consultation on Lawful Access ... Yesterday, the Canadian Internet Policy and Public Interest Clinic (CIPPIC) at the University of Ottawa made its submission available. In its conclusions, CIPPIC remains highly sceptical of government arguments about the need for greater access to CNA information: 'Information identifying telecommunications subscribers can be highly sensitive given the electronic trail of publicly available and otherwise accessible data that individuals now leave about themselves on the internet and other digital devices as they go about their daily lives. For this reason, we submit that CNA information raises a 'reasonable expectation of privacy' on which a Charter challenge to laws permitting warrantless access could be based' ..."
• Telecoms Fight Canadian Government Over E-Surveillance Costs (April 4, 2008): "The University of Ottawa's Michael Geist draws attention to documents obtained by Canwest News Service reporters that reveal a behind-the-scenes tug-of-war between industry and the federal government over who should bear the costs of electronic surveillance."
• 2007 Annual Report on Use of Electronic Surveillance in Canada (May 20, 2009): "The report [from Public Safety Canada] outlines the use of electronic surveillance of private communications by law enforcement agencies to assist in criminal investigations. Under the Criminal Code, agencies must obtain judicial authorization before conducting the surveillance. The government is required to prepare and present to Parliament an annual report on the use of electronic surveillance. The 2007 Annual Report covers a five-year period from 2003 to 2007."
  
• Canadian Government Re-Introduces Internet Surveillance Bills (November 2, 2010): "The federal government has re-introduced two bills in the House of Commons that would allow police and intelligence officials to intercept online communications and get personal information from Internet service providers. The government explains that the legislation targets child sexual predators, distributors of pornography and identity thieves. The bills also go after people who use the Internet to plan terrorist acts."

Canadian Government Re-Introduces Internet Surveillance Bills

The federal government has re-introduced two bills in the House of Commons that would allow police and intelligence officials to intercept online communications and get personal information from Internet service providers.

The government explains that the legislation targets child sexual predators, distributors of pornography and identity thieves. The bills also go after people who use the Internet to plan terrorist acts.

The Investigative Powers for the 21st Century Act would help law enforcement by:

• enabling police to identify all the network nodes and jurisdictions involved in the transmission of data and trace the communications back to a suspect. Judicial authorizations would be required to obtain transmission data, which provides information on the routing but does not include the content of a private communication;
• requiring a telecommunications service provider to temporarily keep data so that it is not lost or deleted in the time it takes law enforcement agencies to return with a search warrant or production order to obtain it;
• making it illegal to possess a computer virus for the purposes of committing an offence of mischief; and
• enhancing international cooperation to help in investigating and prosecuting crime that goes beyond Canada’s borders

Here is the government backgrounder on the proposed bill.

The second bill is called the Investigating and Preventing Criminal Electronic Communications Act and it would require ISPs to include interception capability in their networks, making it easier for law enforcement and national security agencies to intercept suspicious information. The proposed Act also calls for service providers to supply basic subscriber information upon request to designated law enforcement, Competition Bureau and national security officials.

It is the re-introduction of Bill C-47 from Parliament's last session. The LEGISinfo website has a legislative summary of that bill.

Earlier Library Boy posts on the topic include:

• List of Electronic Surveillance Laws in the U.S. (December 22, 2005): "For Canadian material, one can have a look at the lawful access section of the CIPPIC website. CIPPIC is the Canadian Internet Policy and Public Interest Clinic based at the University of Ottawa."
• Canadian Bar Association Worried About ISP Surveillance (July 8, 2006): "The Canadian Bar Association appears concerned that Internet service providers have been putting into place the technical capacity to monitor their customers' communications without proper authorization."
• Update on Canadian Internet Surveillance Proposals (October 30, 2006): "University of Ottawa law prof and Toronto Star columnist Michael Geist has published a piece about the state of the federal government's lawful access initiative. The idea behind lawful access is to provide Canada law enforcement with new, more sophisticated electronic surveillance tools to prevent and fight organized crime, money laundering and terrorist activities. Geist analyzes various internal government documents recently obtained under the Access to Information Act that show how authorities are attempting to deal with the initial negative public reaction to the proposals to expand police powers."
• Canadian Government Consultation on Lawful Access (September 14, 2007): "The purpose of this consultation is to provide a range of stakeholders - including police and industry representatives and groups interested in privacy and victims of crime issues - with an opportunity to identify their current views on possible approaches to updating Canada’s lawful access provisions as they relate to law enforcement and national security officials’ need to gain access to CNA [customer name and address] information in the course of their duties. The possible scope of CNA information to be obtained is later identified, but it should be noted from the outset that it would not, in any formulation, include the content of communications or the Web sites an individual visited while online."
• CIPPIC Paper on Government's Lawful Access Initiative (October 16, 2007): "This is a follow-up to the September 14, 2007 Library Boy post entitled Canadian Government Consultation on Lawful Access ... Yesterday, the Canadian Internet Policy and Public Interest Clinic (CIPPIC) at the University of Ottawa made its submission available. In its conclusions, CIPPIC remains highly sceptical of government arguments about the need for greater access to CNA information: 'Information identifying telecommunications subscribers can be highly sensitive given the electronic trail of publicly available and otherwise accessible data that individuals now leave about themselves on the internet and other digital devices as they go about their daily lives. For this reason, we submit that CNA information raises a 'reasonable expectation of privacy' on which a Charter challenge to laws permitting warrantless access could be based' ..."
• Telecoms Fight Canadian Government Over E-Surveillance Costs (April 4, 2008): "The University of Ottawa's Michael Geist draws attention to documents obtained by Canwest News Service reporters that reveal a behind-the-scenes tug-of-war between industry and the federal government over who should bear the costs of electronic surveillance."

Net Neutrality for Libraries Presentation

Earlier this week, Alex Guindon and Danielle Dennie of Concordia University in Montreal made a presentation at the 2009 annual conference of the Canadian Library Association in that same city.

It is entitled Net Neutrality and what it means for libraries and has been made available on the E-LIS site (E-prints in Library and Information Science):

"Net Neutrality, the idea that the Internet should be provided to all without discrimination based on content or applications, has been an important policy issue in the last few years. The focus of the presentation will be on key concepts, historical perspectives, legislative issues, and the impact of Net Neutrality on libraries and their users."

2007-2008 Annual Report of the Communications Security Establishment Commissioner

The most recent annual report of the Communications Security Establishment Commissioner of Canada has been made available.

The Establishment, or CSE, is Canada's national cryptologic agency working under the control of the Department of National Defence.

CSE code-breakers protect the Government of Canada's IT infrastructure from hostile attacks and provide foreign signals intelligence services (electronic espionage). It also provides technical and operational assistance to federal law enforcement and security agencies.

The Commissioner, the Honourable Charles D. Gonthier, Q.C., is the official watchdog over the agency's activities, which include intercepting, decoding, and analyzing phone calls, e-mails and other electronic communications of Canada's international adversaries.

Gonthier is a former justice of the Supreme Court of Canada.

Telecoms Fight Canadian Government Over E-Surveillance Costs

The University of Ottawa's Michael Geist draws attention to documents obtained by Canwest News Service reporters that reveal a behind-the-scenes tug-of-war between industry and the federal government over who should bear the costs of electronic surveillance.

According to the Calgary Herald article to which Prof. Geist links:

"The Harper government's plans to reintroduce legislation that would make it easier for law-enforcement agencies to monitor Internet and wireless communications have been held up by a dispute with industry over who should cover the costs, according to documents obtained by Canwest News Service (...) "

"Police and the Canadian Security Intelligence Service can already seek the authority to wiretap private communications through the Criminal Code, CSIS Act and other laws. But the laws were written before the emergence of the Internet, mobile phones and handheld computers, and in many cases the industry hasn't developed the technology to intercept such communications. (...)"

"Tensions between industry and law enforcement have become so strained that some municipal police forces have refused to pay claims for compensation submitted by telecom companies, and some of the cases have ended up in court."

"The Supreme Court last week dismissed an appeal by Telus Mobility, which wanted to be compensated for digging up call records as part of two 2004 criminal investigations in Ontario."

The "lawful access" law, as it is better known, would have effectively forced companies to build intercept capabilities into their networks.

The Supreme Court of Canada decision mentioned is Tele‑Mobile Co. v. Ontario, 2008 SCC 12 :

"Amendments to the Criminal Code in 2004 introduced a new investigative tool for law enforcement agencies: a production order that would compel third parties to produce documents or data for use in criminal investigations. Two production orders required Telus to produce call data records. Telus applied for exemptions from the orders on the grounds that the burden of compliance would be unreasonable without compensation due to the cost of retrieving the archived data. The Ontario Court of Justice dismissed the application for exemptions. Telus appealed directly to the Supreme Court, pursuant to s. 40(1) of the Supreme Court Act, arguing that the broad wording in s. 487.012(4) of the Criminal Code permitting a judge to add terms and conditions, allowed for the inclusion of a condition of the production order directing payment of reasonable costs of compliance. "

"Held: The appeal should be dismissed."

The Osgoode Hall Law School blog The Court has 2 posts on the Tele‑Mobile case:

• Who should pay for third-party criminal production orders? (Nov. 28, 2007)
• Police Get Free Lunch in Tele-Mobile Co. v. Ontario ( April 2nd, 2008)