[***UPDATE: The legislation discussed below is on hold as a result of the prorogation of Parliament***]
The Canadian Civil Liberties Association is strongly opposed to many of the new law enforcement powers that have been proposed under the government’s recent “lawful access” legislation, and we think that you should be too. This legislative initiative will give law enforcement agencies (LEAs) unprecedented and bold new powers to monitor the internet habits and other electronic communications of Canadians. In doing so, it will significantly change the legal environment in which digital communications take place and expose Canadians to unacceptable threats to their personal privacy.
While the CCLA is not opposed to LEAs having the tools they need to prevent crime in the digital age, we believe that any such powers must sufficiently respect individual rights and freedoms and be subject to comprehensive independent oversight. Sadly, the changes set out in the government’s proposed legislative amendments fall unacceptably short of this standard.
The Legislation
On June 18, 2009 the federal government introduced two new bills that significantly enhance the ability of LEAs to legally intercept and monitor electronic communications data.
Bill C-46, the Investigative Powers for the 21st Century Act, gives LEAs several new powers. Among these powers is the ability to compel electronic “transmission” and “tracking” data from telecommunications and internet service providers when there are “reasonable grounds to suspect” that his data relates to a crime. This electronic data can be obtained through two different types of judicial orders, warrants (which apply to the acquisition of real-time data) and production orders (which apply to the acquisition of historical data).
Bill C-47, the Technical Assistance for Law Enforcement in the 21st Century Act, also gives LEAs new powers. Most notably, it will permit state agents to compel telecommunications and internet services providers to hand over subscriber information without first obtaining a warrant. In order to ensure that private companies comply with this legislation, Bill C-47 also obliges certain private businesses to acquire new equipment and software that will enable them to intercept customer communications.
Why CCLA opposes the Bills
In the CCLA’s view, the powers set out in Bills C-46 and C-47 go too far and fail to provide for an appropriate degree of oversight of law enforcement activity. Moreover, we do not believe that a sufficient case has been made as to why these powers are necessary, which should be a prerequisite to the introduction of any new law enforcement authority. It is unclear why the current legislative regime, which allows law enforcement agencies to access similar electronic data with stricter warrant requirements, is insufficient. In our view, if there are specific circumstances where the current law is inadequate, it is better to address those circumstances in a targeted fashion rather than overhauling the legal environment governing privacy in electronic communications.
The CCLA’s greatest concerns relate to the provisions in Bills C-46 and C-47 that give LEAs access to electronic data and those granting warrantless access to telecommunications and internet subscriber information. Moreover, the fact that our government is considering giving LEAs such powers further highlights the need for more robust accountability mechanisms for LEAs than those that are currently in place.
Electronic Data – Warrant and Production Order Requirements are Too Low
If the Bills are passed, LEAs will be empowered to obtain a broad range of electronic data to which they do not presently have access from telecommunications and internet service providers. It appears that this data could reveal when and with whom suspects have communicated electronically and where they have physically been. While LEAs will be required to obtain a warrant before they can access this information, the CCLA is concerned that the requirements in place for obtaining such warrants are unacceptably low given the nature of the information in question.
Specifically, if passed into law, Bill C-46 would allow LEAs to access certain electronic data pursuant to a lower threshold than the standard of reasonable and probable grounds to believe that is usually required to obtain a search warrant. This would enable LEA’s to obtain warrants for electronic data more easily and would likely lead to a greater amount of otherwise personal information being accessed by LEAs.
In the CCLA’s view, the relevant electronic information can be of a very sensitive nature and should be subject to significant protections. While it may be appropriate for LEAs to obtain this information under certain circumstances, there is no reason for lowering the threshold for warrants in the manner proposed. The result would be that LEAs could obtain an individual’s private information just because they have a suspicion that they may have done something wrong, rather than a fully-formed belief that they have done something wrong – the current standard for obtaining a warrant to search a premise or access emails. In our view, this could create a risk of unwarranted snooping and privacy invasions.
Warrantless Access to Subscriber Information is Privacy Invasive
Under Bill C-47 law enforcement would also be given the power to compel subscriber information from telecommunications and internet service providers without first obtaining a warrant. In the CCLA’s view, the introduction of this power is unacceptable, as it would leave it up to LEAs to decide when they can access subscriber information, rather than the courts.
The absence of the judicial safeguard of a warrant seems to flow from the notion that subscriber information does not reveal a great deal about a person and, thus, attracts a lower expectation of privacy than other personal information. The CCLA does not accept this argument. Like other personal information, subscriber data can expose extremely intimate details about people’s lives by revealing their internet-based activities. If police, for example, obtained the internet history of a certain IP address and were then able to match up that information with a specific individual, they could learn where that person had been on the internet. This data could reveal that person’s religion, medical history and sexual preferences, in addition to a seemingly endless array of other personal data.
In the CCLA’s view, giving LEAs warrantless access to subscriber information could result in significant privacy invasions – something every Canadian should be concerned about. While we do not necessarily object to LEAs being able to access subscriber information, we simply think that they should be required to get a warrant before doing so. In our view, warrantless access to this information contravenes the constitutional guarantee against unreasonable search and seizure.
Law enforcement agencies suggest that they at times require subscriber information on an expedited basis before the identity is lost or changed. If that is the case, it may be appropriate to simply expand the current category of exigent circumstances or create emergency production orders that could be reviewed by a court. We should not accept processes that do not have proper judicial oversight. Abandoning the warrant process and the independent judicial oversight that it provides is a steps backwards, not forwards.
More Oversight Required
The introduction of Bills C-46 and C-47 highlights a current hole in Canada’s law enforcement accountability framework – the absence of a robust mechanism for ensuring independent auditing of LEAs on an ongoing basis. In CCLA’s view, such a mechanism is necessary to ensure that state power is exercised in a fair and responsible manner and that the public’s faith in our country’s LEAs is enhanced.
Transparency is a key component of an accountability framework, and necessitates effective independent oversight about how the state’s powers are being exercised. To improve both accountability and public confidence in law enforcement, the CCLA believes that the government should establish an independent oversight body to ensure that law enforcement powers are used appropriately. The current accountability framework relies too heavily on complaints and internal investigations and, as a result, often leaves the public in the dark about many aspects of the business of law enforcement.
Effective oversight would involve giving independent scrutineers ongoing access to the records, facilities, and personnel of Canada’s key law enforcement agencies, so that self-generated probes of how law enforcement powers are being used could be conducted. In the CCLA’s view, this would usher in benefits for both the accountability of law enforcement institutions and the public’s faith in the important work that they do.
Get Informed
If you would like to review Bills C-46 & C-47 for yourself you can do so by clicking the links below:
• Bill C-46, the Investigative Powers for the 21st Century (IP21C) Act;
• Bill C-47, the Technical Assistance for Law Enforcement in the 21st Century Act.
You can also access information about the government’s perspective on the Bills by using the following links:
• Media Release: Government Of Canada Introduces Legislation To Fight Crime In The 21st Century;
• Backgrounder: Bill C-46, the Investigative Powers for the 21st Century (IP21C) Act;
• Backgrounder: Bill C-47, the Technical Assistance for Law Enforcement in the 21st Century Act.
You can also access the Canadian Internet Policy and Public Interest Clinic’s analysis of the Bills by clicking the link below:
• CIPPIC Analysis of Proposed Police Surveillance Powers
