The introduction of Bills C-46 and C-47 in Canada sparked concern regarding the role of the federal government and other authorities to expand surveillance and increase investigation of the Canadian public. The bills were tabled June 2009 and continue to be met with much concern. This article will elaborate on the significant aspects of each bill, with an eye to some of the potential privacy concerns that may be raised.
Bills C-46 & C-47
In June 2009, the Canadian federal government tabled two significant pieces of legislation: the Investigative Powers for the 21st Century Act (Bill C-46) and the Technical Assistance for Law Enforcement in the 21st Century Act (Bill C-47).
Bill C-46 allows police and other authorities to collect digital evidence amongst numerous devices and computer networks. These may be interprovincial or even international. A motivating factor for this bill is to ensure that multiple avenues are examined, in a timely manner, especially since digital data often has a short life span. Some important issues in the Bill C-46 legislation include:
- This includes the data from telephone and internet communications. However, this does not include the content.
- This ensures that communications can be traced back to the original service provider. This allows police to trace domestic and international cybercrime.
- Determining the origin of transmission can help identify the jurisdiction of telecommunications.
- A preservation order is a temporary order that requires a telecommunications service provider to safeguard and store data (e.g. usage and location) related to a specific communication. It is also known as a “quick freeze” order.
- This is restricted only to the data that is related to a particular investigation.
- This allows police to remotely activate tracking devices found in some technologies (e.g. cell phones, car tracking devices).
- This may permit police to install new devices to enable tracking.
- Authorities can have special orders for tracing mobile communications devices as well as their owners.
- International cooperation is crucial for many cybercrime investigations.
- The proposals in this bill strengthen the instruments that enable broad-based international cooperation in investigation as well as prosecution of computer-related crimes.
Bill C-47 does not provide police or other law enforcement authorities with additional powers, but it does mandate that authorities have a technical solution in place to actually intercept telecommunications. At this point, Canada does not require companies to build interception capability into their telecommunications networks. This means that when warrants are issued, they cannot be acted upon, since the service provider’s network cannot be intercepted. This may create a safe haven for criminal activity.
In response, Bill C-47 requires companies to create intercept-capable infrastructures, which includes paying for the new equipment and software involved. The government will provide compensation for any required retrofits. The intention is to introduce intercept solutions as flexibly and gradually as possible. This will ensure that telecommunication services are able to build and maintain interception capability without creating undue burdens on the company. Eventually, Bill C-47 will allow authorities to obtain individual information such as name, phone number, address, IP address, and other mobile phone identifiers.
Some proponents of the Bills have argued that the legislation is not too different from other criminal legislation affecting privacy interests. They argue that Canada is far behind the curve in terms of lawful access legislation. For instance, both the US and Australia have implemented such legislation for more than ten years. Introducing such measures will enable Canadian companies to comply with international obligations, facilitating international competition.
However, others have cautioned that these measures should not simply be implemented because of the choices of other countries. It is important to note that in a number of countries interception and surveillance measures were passed, in spite of public opposition.
Opponents of the bills argue that while the proposals are presented as security measures, they may lead to a “chilling effect.” This means that citizens may become nervous about the monitoring of their online activities. Lawful surveillance may silence debates and shut down the development of legal online activities.
Other observers commented on the fact that there is increased collaboration between government and private actors to track citizens’ actions and activities in the digital world. Surveillance and interception is largely justified based on user agreements. These contain provisions which allow the telecommunications service providers to monitor and transmit the information to authorities. However, many users do not read or understand these agreements. They are also unable to negotiate the terms with the service providers. Arguably, users have no choice but to hand over their constitutional rights, if they want to have access to such necessities as telephone and internet services.
The Office of the Privacy Commissioner of Canada (OPC) recommends that Parliament remain cautious about surveillance and interception legislation, which will often have repercussions on other jurisdictions as well as a significant impact upon the privacy rights of Canadians. In a joint resolution issued by the federal Privacy Commissioner as well as provincial commissioners and ombudspersons, there must be a clear and demonstrable need for acquiring before expanding investigative powers of law enforcement and other national security agencies. According to the Commissioners and ombudspersons, the federal government has not provided satisfactory evidence that supports the need for the new powers outlined in the proposed legislations.
The joint resolution argues that the proposed legislations allow authorities to access personal information, such as unlisted telephone numbers, email addresses and IP addresses. However, Canadians consider this information extremely sensitive and expect it to remain confidential. The use of computers and other remote devices should also remain private. Arguably, the proposed legislation does not only target serious criminal offenses, but it might also be applied to investigations of minor infractions and non-criminal matters.
While the OPC and the ombudspersons are not completely opposed to legislation regarding the monitoring of digital data, it must take into account individual privacy rights and the legitimate needs of law enforcement authorities. The following outlines the OPC’s recommendations regarding Bill C-46 and Bill C-47:
- The federal government needs to demonstrate that the expanded surveillance is actually essential and justified.
- The federal government should explore alternatives to the proposed Bills.
- The Bills should be limited to only specific, serious crimes and life-threatening emergencies.
If there are any legislative proposals on surveillance, they should embody the following characteristics:
- Minimally intrusive
- Have well-defined limits on the use of the new powers.
- Have appropriate legal thresholds for court authorization.
- Require draft regulations to be publicly reviewed before being enforced.
- Provide effective oversight.
- Publicly report the use of powers.
- Have a five-year Parliamentary review.
In taking these recommendations into account, Parliament will be able to update surveillance and investigation legislation appropriately to meet the needs of law enforcement.
This article examines the proposals in Bill C-46 and Bill C-47, which are the Investigative powers for the 21st Century Act and the Technical Assistance for Law Enforcement in the 21st Century Act, respectively. It looks at the new powers that may be afforded to police and other law enforcement bodies across Canada. It introduces a number of different perspectives on the Bills. For some, the Bills do not present an issue for concern, as many other countries have introduced similar legislation and Canada is simply catching up with these obligations. But for others, those who are opposed to the Bills point out the repercussions in varied contexts. Finally, the article examines the OPC’s response and recommendations to surveillance legislation.
In preparation for the Certified Information Privacy Professional/Canada exam, a privacy professional should be comfortable with topics related to this post, including:
- End user expectations (V.C.c.a.i.)
- Vendor and contract management (V.C.e.)