Backgrounder

Review of Lawful Access Legal Framework

What is Lawful Access?

Lawful access is the interception of communications and the search and seizure of information, which law enforcement and national security agencies use to conduct investigations. Lawful access can only be exercised with a lawful authority and is well entrenched in laws such as the Criminal Code, the Canadian Security Intelligence Service Act, the Competition Act and other Acts of Parliament. Lawful access legislation also recognizes the privacy rights of all people in Canada and their rights under the Canadian Charter of Rights and Freedoms.

A Changing Environment

Rapid developments in information and communication technologies have offered Canadians a wide range of e-commerce and information sharing opportunities. While these technologies provide many advantages to our society, they can also be used to conduct and shield illicit activities such as drug trafficking, murder, child pornography, smuggling, Internet and telemarketing fraud, price fixing, and terrorism. Consumers have become the targets of fraud and businesses are affected by malicious acts that undermine their ability to compete in the electronic marketplace. With globally connected networks, the consequences of these crimes have become more far-reaching.

These new technologies are posing challenges to conventional lawful access methods. Law enforcement and national security agencies must often overcome a variety of technical hurdles before they can access the communication or information that they are legally authorized to collect. These include:

Wireline communications: Law enforcement and national security agencies have conducted lawful investigations with wireline services for many years. However, more advanced service options and calling features have created new obstacles.

Wireless communications: The rapid expansion in the use of wireless communications tools including cellular telephones, wireless e-mail and Internet devices and satellite communications can pose a significant challenge for law enforcement and national security agencies, which must now deal with a variety of companies and a diversified combination of network infrastructures.

The Internet: The Internet is a collection of thousands of networks around the world, that exchange and share information but the Internet has no centralized physical location or control. The complex technology of Internet communications, the need for sophisticated equipment to investigate Internet communications, and the lack of provisions that would require Internet Service Providers (ISPs) to implement procedures for lawful intercept capabilities have created difficulties for investigators.

International commitments

The global nature of new technology has increased the need for international cooperation in developing effective solutions. Several of Canada's international partners have updated their legislation to ensure that their law enforcement and national security agencies maintain their lawful access capabilities. Canada is currently involved in discussions with the G8 and other countries on issues such as cross-border search and seizure; tracing the source and destination of computer communications; and cooperation between law enforcement and national security agencies and industry.

On November 23, 2001, Canada signed the Council of Europe Convention on Cyber-Crime, which requires states to criminalize certain forms of abuse of computer systems and certain crimes when they are committed using computer systems. The Convention also supports international cooperation to detect, investigate and prosecute these criminal offences, as well as to collect electronic evidence of any criminal offence, including organized crime and terrorist acts. Canada played an important role in the drafting and negotiation of the Convention and is one of over 30 signatories to it.

At the G8 Justice and Interior Ministers' meeting held at Mont Tremblant in May 2002, the Ministers of Justice and Interior of the G8 states endorsed recommendations to trace networked communications across national borders in order to combat terrorist and criminal organizations, as well as a number of other documents that would help governments to combat high tech crime.

By implementing the provisions outlined in the consultation paper, Canada will be in a position to ratify the Convention. It will also contribute to our G8 and other global obligations.

Consultations

The Government of Canada is committed to maintaining public safety and national security, protecting the rights and privacy of all people in Canada, encouraging the growth of electronic commerce and a competitive electronic marketplace and safeguarding computer systems. At the same time, the Government recognizes that new information and communication technologies are challenging the investigative abilities of law enforcement and national security agencies.

The Government of Canada will be holding consultations to provide a broad range of stakeholders, including the provinces and territories, law enforcement and national security agencies, telecommunications and related industry representatives, civil liberties and privacy organizations and the legal community, with an opportunity to consider lawful access issues and options for policy and legislative changes.

To facilitate these consultations and public input, a consultation document on lawful access is available at www.canada.justice.gc.ca/en/cons/la_al. Submissions must be sent before November 15, 2002.

The consultation document outlines legislative, regulatory and policy options that would ensure that law enforcement and national security agencies maintain their lawful access capability, while taking into account legal, technical, privacy and economic considerations.

A central element of these proposed options would require all wireless, wireline and Internet service providers to have the technical capability to provide access to communications and information, under legal authority, to law enforcement and national security agencies. Proposed Criminal Code amendments include the creation of production and preservation orders for data as well as other amendments to modernize the law to deal with new technologies.

These consultations are a part of the Government of Canada's commitment, made in the January 2001 Speech from the Throne, to provide modern tools to safeguard Canadians from emerging threats such as cyber-crime. The lawful access consultations will also contribute to Canada's ratification of the Council of Europe Convention on Cyber-Crime, the implementation of G8 recommendations and to Canada's ongoing commitment to work with international partners and ensure a balanced and effective approach to addressing threats to public safety and national security. The proposals outlined in the consultation paper parallel measures that have been taken by other countries.

Federal government partners involved in the lawful access consultations include the Department of Justice Canada, Solicitor General Canada, Industry Canada, the RCMP, the Canadian Security Intelligence Service, the Department of Foreign Affairs and International Trade and the Competition Bureau.

August 2002