CAUCE

Lawful access bills likely to be reintroduced in the Fall

A number of bills falling under the rubric of 'lawful access' have been kicking around Canadian Parliament for about a decade now. Law enforcement agencies have been pushing for stronger powers for online surveillance and investigations since the 1990s, leading to consultations in 2002, and the introduction of Bill C-74, the Modernization of Investigative Techniques Act, by the Liberal government in 2005. In June, 2009, the Conservatives introduced Bill C-46, the Investigative Powers for the 21st Century (IP21C) Act, and Bill C-47, the Technical Assistance for Law Enforcement in the 21st Century Act. The last Parliamentary session saw the introduction of a suite of three lawful access bills: C-50, 51, and 52.

Bill C-50, the Improving Access to Investigative Tools for Serious Crimes Act, would expand on the existing provisions enabling law enforcement agencies (LEAs) to obtain warrants to intercept private communications, to use tracking devices, and telephone number recorders.

Bill C-51, the Investigative Powers for the 21st Century Act, would amend the Criminal Code, the Competition Act, and the Mutual Legal Assistance in Criminal Matters Act to do several things, including: allow LEAs to apply for a production order for transmission data relating to an internet or telephone communication; enable preservation orders for communications of a specific subscriber; create new offences regarding computer viruses; establish new powers for the use of tracking devices; and, allow for the use of transmission data recorders. This bill would also make changes to existing offences of making hate propaganda available, sending a message in a false name, and sending false information, indecent remarks or "harassing" messages to broaden their application and, in some cases, increase penalties.

 

Bill C-52, the Investigating and Preventing Criminal Electronic Communications Act, would require telecommunications service providers to make their networks intercept-capable (similar to the U.S. Communications Assistance for Law Enforcement Act). Intercept requirements apply to transmission data and content of communications. C-52 would also compel telecommunications service providers to provide LEAs with access to data about telecommunications service subscribers (e.g., name, address, telephone number, electronic serial numbers, etc.) without a warrant under certain circumstances.

As bills C-50, 51 and 52 died when the election was called in earlier in March, it seems likely that they will be reintroduced in the Fall. CAUCE supports measures that will help the Canadian government and LEAs deal with crime conducted through the internet; however, we also encourage Parliament to engage in a thoughtful and meaningful discussion of any proposals to ensure that potential unintended consequences for internet users are minimized.

We will have more to say about these bills if and when they are reintroduced later this year.

 

 

- Shaun Brown, CAUCE

Industry Canada Regulations for CASL

As part of the official process to launching Canada’s new Anti-spam legislation Industry Canada has released their definitions and regulations for C-28 (aka. CASL, FISA, ECPA).

The Highlights are as follows:

Personal Relationship: Where an individual has met with the person to whom the message is sent in a non-business context, and where there is evidence of non-commercial communication between the individuals within the previous two years.

Family Relationship: for the purposes of the Anti-spam Legislation to be in keeping with definitions in the Income Tax Act. It also specifies that it is intended to refer to persons descending from a common grandparent, including aunts, uncles, cousins, nieces, and nephews.

Express consent under the Anti-spam Legislation means that commercial communication may not take place unless the person or corporation in question first consents to be contacted.

Implied consent means that commercial communication may take place with persons or corporations under circumstances where it can be deemed that they might be interested, but the recipients of the communication must be able to “opt out” of such communication.

The second element of the Regulations states that consent to receive messages from a third party is only valid if the individual providing consent will have the ability to unsubscribe to the message, and by the same means be able to alert the original requester that their consent is withdrawn.

The proposed Regulations define “membership” as having applied for, met the formal requirements to belong to an organization, paid any fees required to belong to an organization, and having been accepted as a member in accordance with the membership requirements of the organization.

The proposed Regulations define “club,” “association” or “voluntary organization” as a non-profit organization that is organized and operated exclusively for social welfare, civic improvement, pleasure or recreation or for any other purpose than profit, if no part of the income of which was payable to, or otherwise available for the personal benefit of any proprietor, member or shareholder of that organization unless the proprietor, member or shareholder is an organization the primary purpose of which is the promotion of amateur athletics in Canada.

 

It is important to note that these regulations are in addition to the CRTC's regulations (Unsubscribe, Identification and Consent have been regulated by the CRTC) and the Office of the Privacy Commissioner’s regulations and are not a replacement to the others, which exist concurrently.

Comments are welcomed byIndustry Canada: “Interested persons may make representations concerning the proposed Regulations within 60 days after the date of publication of this notice.”

 

- Matt Vernhout, CAUCE (re-published with permission from Email Karma)