Lawful intercept to reappear in other government bills, regulations, experts say

A so-called Internet surveillance bill that was scrapped by the government this week will be “chopped up" into elements that will appear in other bills and regulations, industry experts say. In a blog post on Monday, Chris Parsons, a network expert and doctoral candidate at the University of Victoria, said proposed licence conditions for wireless carriers that will operate in the 700 MHz spectrum band represent a “way forward” for expanded surveillance of Canadian telecommunications after Justice Minister Rob Nicholson said the Conservative government would not proceed with its lawful access bill, C-30. Those conditions, which were proposed by Industry Canada in an April 2012 consultation, would require spectrum licence winners to maintain the capability to intercept communications on any “interconnected radio-based transmission facility.” “t would appear that Industry Canada and the Enforcement Standards will be a key part of how new wiretapping and monitoring powers are brought into force,” Parsons wrote of the proposed conditions. “The ‘way forward’ with government surveillance, then, seems to be significantly based in updating compliance requirements instead of democratically passing legislation.” Nicholson told reporters on Parliament Hill on Monday that the government would not proceed with Bill C-30, which would have required Internet and mobile providers to maintain the ability to intercept their subscribers’ communications and to disclose customer information to authorities without a court-ordered warrant. He said the government chose not to proceed with C-30, which was stalled in the House of Commons and officially called the Protecting Children from Internet Predators Act, due to negative public reaction. “We’ve listened to the concerns of Canadians who have been very clear on this and we’re responding to that,” he said. In a telephone interview Tuesday, Parsons said he suspects C-30 will be “chopped up and divvied out” into different laws and regulatory updates. “Like every other time, it will be back somehow,” he said. “It’ll just be what form it mutates into.” He said “bits and pieces” of the original bill would re-emerge in new laws and regulations, such as the proposed 700 MHz spectrum conditions and proposed amendments to the Personal Information Protection and Electronic Documents Act (PIPEDA) under Bill C-12. The 700 MHz licence conditions, he said, would expand previous requirements that carriers can intercept “circuit-switched voice telephony,” such as phone calls and text messages, to include packet-based communications, such as email and other online activities. Under the conditions outlined in C-12 “it’ll be permissible for Internet service providers to share information about subscribers and it’ll reduce the potential liability they may face for sharing that information,” he said. C-12 was up for debate in the House before the holiday break but has yet to re-emerge. In a blog post on Tuesday, Michael Geist, the Canada research chair in Internet and e-commerce law at the University of Ottawa, said parts of C-30 have also been “lifted directly” into a new bill, C-55, which responds to a Supreme Court decision last year that dealt with warrantless police wiretaps. That decision, issued in April 2012 in the case of R. v. Tse, struck down a surveillance law that did not require police to notify parties they had been wiretapped after the fact. “Although the bill is ostensibly a response to last year’s R v. Tse decision from the Supreme Court of Canada, much of the bill is lifted directly from Bill C-30,” Geist wrote. “Moreover, there will be other ways to revive the more troublesome Internet surveillance provisions.” Bill C-55, which was tabled in the House of Commons on Monday, will “directly respond” to the court ruling, the federal Justice Department said in a release. It said the bill will require that anyone whose communications were intercepted “in situations of imminent harm” without a warrant be notified within 90 days. The bill would also restrict the authority to use the wiretap provision to police officers, and would require police to file annual reports identifying when they used those provisions and for what purpose, the department said. Mark Jeftovic, founder and president of easyDNS Technologies Inc., said in an interview that C-30 would have placed an “onerous” burden on Canada’s Internet service providers (ISPs) and that the bill’s death came as a relief. “It was practically Draconian what they would have to make themselves accessible or available to, had the bill passed, and it was pushing all the costs onto as well,” he said. Last February, the federal government said the lawful access regime proposed under C-30 would have cost at least $80 million for telecommunications providers to implement. Many providers had said they would need upgrades to their networks to comply with the law. Jeftovic said the death of C-30 in its original form is a minor victory for the industry. “That said, I don’t expect it not to come back in one shape or form or another at some point down the road under whatever guise they want to dress it up in next time,” he said. Marc Choma, a spokesman for the Canadian Wireless Telecommunications Association (CWTA), said in an interview that the organization’s concern with C-30 has always been focused on what would be required of providers, what new technology would have to be installed and the costs associated with doing that. “It would appear that the new bill is going to remove the requirement for new technology or for the industry to create systems to comply with lawful access,” he said. He said there would still be ongoing costs to wireless providers associated with intercept capabilities that are presently provided to law enforcement. In a statement on Tuesday, Privacy Commissioner Jennifer Stoddart said the government’s decision to scrap C-30 is a “welcome development for privacy in Canada.” “I applaud the many Canadians who spoke out about their concerns with the Bill and their deep attachment to their privacy rights,” Stoddart said. —With reporting by Danika Grenier at dgrenier@thewirereport.ca and editing by Nick Kyonka at nkyonka@thewirereport.ca

Lawful intercept to reappear in other government bills, regulations, experts say

News | February 13, 2013

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