Canadian Government Seeking to Resurrect the Lawful Access Debate (Warrantless Wiretapping)

The Lawful Access debate could soon rear its ugly head again in Canada. This was buried in a money laundering consultation.

There are a lot of things I hoped I would never see discussed in the media ever again. One such thing revolves around two words: “Lawful Access”. Most readers here today likely won’t recognize the concept or remember the massive debate surrounding it, but I certainly have. In my first year working as a small upstart journalist, I had written about the then called Bill C-74 during the Paul Martin Liberal government.

At its core, the debate was basically that police want to access people’s personal information over the internet. However, filling out a warrant is just too much work and hassle. So, instead, the government hypothesized, we could just do away with due process and allow police to gather whatever personal information they want from the ISP with impunity. This might include a customers address or phone number, for instance.

Of course, the problem is that we live in this type of society called a “democracy” where there is such thing as due process. If an officer of the law has grounds to suspect criminal activity, a judge should at least be present to either say that there is clear legal grounds, here is your warrant, or there is clearly not enough evidence, come back with a stronger case to get a warrant. Either way, you have that check and balance in place and it is there to prevent things like an abuse of power among other things.

Although the journey of Lawful Access back in the day started, at least for me, with the Paul Martin Liberal government, the Stephen Harper Conservative government was all to happy to copy and paste the Lawful Access legislation when they came into power. The hope for a lot of observers was that a change in government meant a change in direction on this issue. Obviously, that never happened and digital rights organizations were left dismayed with a second government in a row pushing for these laws. Vic Toews, then Public Safety Minister, famously said in 2012 that people are either with them or with the child pornographers. In the same year, the former Minister also attempted to use the then high profile case of Lucca Magnotta to sell the legislation – which, at the time, was known as Bill C-30.

At any rate, this has been a bad piece of legislation that both the Liberal party and the Conservative party have pushed, meaning party lines was always kind of meaningless in this debate. While there were very real threats all along that such a bill would pass at some point or another, those successive bills ultimately ended up dying on the order paper thanks in large part to the overwhelming public outcry from the Canadian public.

In 2017, a committee issued a report recommending against pushing the idea of Lawful Access forward. The decision seemingly marked the end of the Lawful Access debate and the concept of warrantless wiretapping was finally dead in Canada. With nothing else coming from the horizon, digital rights advocates were finally able to breathe a sigh of relief knowing that they have successfully thwarted Lawful Access and that civil rights will live on to fight another day.

Now, six whole years later, it seems that Lawful Access may be preparing to rise from the grave once more, free to terrorize the Canadian public once more. David Fraser, a lawyer who specializes in privacy, spotted a section in a consultation where the government is asking the public about concepts that are basically Lawful Access:

Here we go again … “Law access” is back on the agenda, as the government seeks comments on warrantless access to internet user data, and now digital device searches.

The link goes to a consultation page about money laundering of all things. Part of the section in question reads as follows:

4.4 – Access to Subscriber Information under the Criminal Code

The 2014 decision of the Supreme Court of Canada in R. v. Spencer significantly exacerbated the problems for police in obtaining access to information about subscribers such as name, address, phone number, and related account identifiers, such as an IP address. What constitutes “subscriber information” varies.

A tool similar to the targeted production orders in the Criminal Code that are available for transmission data, financial data, tracking data (associated with an object but not a person) and tracing information, all of which can be obtained when there are reasonable grounds to suspect, would be useful to investigators seeking subscriber information. As there is currently no tool to seek subscriber information, police must default to the general production order, at reasonable grounds to believe, which can be a challenging standard to meet at an early stage of an investigation. A related issue is that law enforcement has reported concern with the length of time provided in these orders for third parties to respond. The response time is usually set at 30 days to align with the timeframe provided in subsection 487.0193(2) for notice of an application for review of an order. In some circumstances, a 30-day wait time for a response to a narrow request, such as a request for subscriber information, can severely compromise the usefulness of the information. This delay can be compounded where several requests are submitted as an investigation proceeds and 30-day timelines multiply. Law enforcement have indicated the 30-day timeframe is common, even where consultation with the relevant entity has indicated an ability to respond in a relatively short timeline.

Although the current Canadian legal landscape is closely similar to European Union countries, Canada’s practices for access to subscriber information are somewhat out of step with those of many other allied countries, such as the United States, the United Kingdom, and Australia, which permit access to subscriber information without prior judicial approval and in short time frames.

Previous governments have engaged in public consultations on this issue on several occasions. Prior to the Supreme Court decision in R. v. Spencer, successive governments brought forward, in multiple legislative proposals, schemes for administrative oversight frameworks for access to subscriber information consistent with how such access is authorized in many other jurisdictions. These prior legislative proposals for access to subscriber information were criticized due to privacy concerns. Many commented their concerns arose from the administrative nature of the schemes and criticized the proposals for the lack of judicial oversight. These proposals were not ultimately enacted.

The government is seeking views on:

  • Should the Criminal Code be amended to include an order for subscriber information?
  • What should be the extent of information available through such an order?
  • Should legislative solutions be explored to address the issues raised by law enforcement regarding turnaround times?
  • What would be the benefits?
  • What would be the challenges?

To put it mildly, this is deeply frustrating on so many levels. The public has spoken loudly and clearly that Lawful Access is not appropriate. There are very clear legal arguments saying that if law enforcement wants to obtain personal information from an ISP, come back with a warrant. Checks and balances are there for a reason. But no, the government has to trot out the same tired line that the cops are too damned lazy to do their freaking jobs. It’s just too much to fill out some paperwork and, therefore, we just have to do away with due process and the civil right that protects unreasonable search and seizure altogether. It didn’t work over half a decade ago and the argument won’t work again today.

It’s obviously worth pointing out that this appears to be a larger consultation phase, so it’s not even close to making it into a legislative process. Canadians will no doubt hope that it stays that way because these kinds of debates are only destined to turn nasty in a hurry.

Drew Wilson on Twitter: @icecube85 and Facebook.

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.

%d bloggers like this: