Privacy office memo suggests ‘warrant light’ approach to lawful access

The Conservative government should take a “warrant light” approach to lawful access legislation now stalled in the House of Commons in the form of Bill C-30, Karim Benyekhlef, a law professor at the Université de Montreal, said in a new report to Canada's privacy commissioner. The Canadian Press reported Tuesday on a memo that showed the Office of the Privacy Commissioner requested the report by Benyekhlef in an effort to help the Conservative government find a compromise on the controversial bill, which was tabled in the House last February and opposed by the telecommunications industry. According to the internal privacy office memo, obtained by CP through an access-to-information request and provided to The Wire Report, Benyekhlef’s 15-page report found that clause 16 of the bill allowing law enforcement access to Internet subscriber data without a warrant is inconsistent with the Canadian Charter of Rights and Freedoms. Right now, Internet service providers (ISPs) provide subscriber information to law enforcement authorities, as requested, on a voluntary basis, The Wire Report reported last year. Under that system, telecom providers, including ISPs and mobile carriers, may release a subscriber’s name, phone number and home address to police without a court order when authorities request the information and explain why it's needed. Telecom experts have criticized C-30—which would require Internet and mobile providers to disclose customer information to authorities without a court-ordered warrant—as a “wide open” surveillance bill. Federal and provincial privacy commissioners have also expressed concerns about the legislation, saying it could affect Canadian privacy rights. The bill is now stalled at first reading in the House. The government has said it intends to move the legislation directly to committee for study, leaving it open to a wider range of amendments. “The idea of having a warrant from the state before entering any premise is a very important legal tradition, not only in Canada, but also in England and of course in the U.S.,” Benyekhlef said in a telephone interview Wednesday. Benyekhlef declined to provide his report to The Wire Report and the commissioner's office did not respond to a request for a copy of it by deadline. The internal memo about the report is dated July 17, 2012. Benyekhlef said a warrant is needed to enter a person’s home and one should be obtained for access to subscriber data such as names, home addresses, IP addresses, email addresses or device identification numbers. Subscriber data must be guarded because it can provide a complete portrait of an individual, including their habits, likes and dislikes, Benyekhlef said. “That’s why we cannot say now that subscriber data is trivial, unimportant and irrelevant. That’s not true,” he said. A balance is necessary and authorities must be able to obtain information quickly, he added. “Rather than obtaining a warrant like we do usually with an affidavit and a written document, will be able to obtain a warrant orally,” he said, referring to the “warrant light” approach recommended in his report. “We understand the necessity of the police force to act swiftly, quickly and without cumbersome procedures." Benyekhlef said oral requests for warrants would be recorded and stored so that justification is available if needed at a later date. According to the memo, Benyekhlef proposed a five-step process for law authorities seeking access to valuable subscriber data. A “designated person” provides a request for the data to the court either in person, on paper, or by telephone. There must also be “reasonable suspicion” that the law has been breached and the requested information must be relevant to the offense in question. If the conditions are met, a signed order would be provided to the authority, which would present it to the service provider. Benyekhlef said Bill C-30's approach is based on the idea of a telephone directory, which does not apply in today's technology. Telephone directories were static and did not provide information beyond a basic telephone number and street address. In May, industry observers said the controversial bill appeared to be sleeping, though it wasn’t dead. Tamir Israel, staff lawyer with public interest group the Canadian Internet Policy and Public Interest Clinic (CIPPIC), said at the time he did not expect the bill to disappear because the government supports it. Chris Parsons, a network expert and doctoral candidate at the University of Victoria, said in an interview Wednesday that the report and memo may be an indication that the legislation is waking up. He said Benyekhlef's proposal is good for Internet service providers because it would give them court oversight. “This will give ISPs that extra level of supervision to ensure that police aren’t just going on fishing expeditions,” he said. Parsons said the proposal still sets the evidence bar “very low” by requiring “reasonable suspicion.” Legally, the requirement to prove “reasonable suspicion” is less rigorous than “reasonable belief,” he said, and some “fishing expeditions” could still happen. “The proposal would increase privacy protections, but they just don’t go far enough,” Parsons said. Marc Choma, a spokesman for the Canadian Wireless Telecommunications Association (CWTA), said in an emailed statement that he doesn't have specific information about progress on Bill C-30, adding that he doesn’t expect the legislation to go ahead in the near future. “However, as various versions of legislation of this type under different governments have been introduced for more than a decade now, we fully expect legislation will move forward at some point,” he said. —With reporting by Danika Grenier at dgrenier@thewirereport.ca and editing by Simon Doyle at sdoyle@thewirereport.ca

Privacy office memo suggests ‘warrant light’ approach to lawful access

News | January 9, 2013

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