Court ruling may clear the way for more digital surveillance
Author: Andrew Mayeda, Canwest News Service
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OTTAWA -- Canada's biggest police association says a Supreme Court ruling on who should pay the cost of digital surveillance should clear the way for the federal government to reintroduce legislation that would help authorities to monitor Internet and wireless communications.

The country's top 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 court ruled Telus failed to prove it was forced to take "unreasonable" steps to comply with a court order to hand over the data.

The Canadian Association of Chiefs of Police, which represents senior officers at the municipal, provincial and federal levels, believes the ruling has removed one of the biggest roadblocks that has delayed the reintroduction of so-called "lawful-access legislation."

The association has been lobbying Ottawa for such a law since the late 1990s.

"In the digital age, we need appropriate tools to deal with Internet crime, cyber-stalking, child pornography, organized crime, national-security investigations. We're one of the last G8 or G9 nations to do this. The time is well past for us to move on this," said Clayton Pecknold, co-chair of the association's law-amendments committee.

Pecknold reiterated the police community's view the lack of such legislation is hurting the ability of law-enforcement agencies to track down cybercriminals.

"The lack of this legislation clearly has a detrimental impact on investigations," he said.

The former Liberal government introduced a law, called the modernization of investigative techniques act, that would have compelled telecommunications service providers such as Bell Canada and Rogers Communications to disclose personal subscriber information to authorities upon request. The Conservative government has been working on a new version of the law, which was introduced just days before the Liberal government fell in November 2005.

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.

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

"This is an important and overdue piece of legislation. We're dealing with intercept legislation that has been around since the '70s, and every Canadian knows how technology has changed since then," said Pecknold, who is also a deputy chief with the Central Saanich Police Service in British Columbia.

But the telecommunications industry has notified the government it won't support the law in its current form, according to documents obtained this week by Canwest News Service under the Access to Information Act.

"The associations are very concerned by the fact that (the lawful-access legislation) is entirely silent on the question of compensation for operational costs, notwithstanding that the topic is currently a significant point of dispute between certain (law-enforcement agencies) and (telecom service providers)," states a joint submission to the government by the Information Technology Association of Canada, the Canadian Chamber of Commerce, the Canadian Association of Internet Providers and the Canadian Wireless Telecommunications Association.

The industry groups have proposed amending the law to "provide reasonable compensation" to service providers for intercepting private communications on behalf of law enforcement and handing over subscriber information.

Compensation has been a long-standing point of contention between telecommunications service providers and the police.

Some municipal police forces have refused to pay claims for compensation submitted by telecom providers.

But Pecknold says the Supreme Court ruling clarifies that any right to compensation must be spelled out in the law. "It reiterates the principle that every citizen, corporate or otherwise, has a responsibility to co-operate with the state in matters of public safety."

According to the documents obtained by Canwest News, officials at the Public Safety department were also closely watching the Telus case to see how it might impact lawful-access legislation.

Privacy advocates and civil-liberties groups have also raised concerns about the proposed law.

Some have speculated the Harper government is hesitant to re-introduce a law that could cause a public backlash over privacy issues.

But Pecknold said law-enforcement agencies are willing to work with privacy groups to address their concerns. And he noted the original bill was introduced by the Liberals, suggesting it would not be too difficult for the Conservatives to seek bipartisan support.

The Public Safety department did not immediately return a request for comment.

Ottawa Citizen
© Canwest News Service 2008

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