Friday, April 04, 2008

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:

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posted by Michel-Adrien at 12:44 pm


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