Home Newsroom 2005 News releases (archive) 2005-11-15: Legislation to modernize investigative techniques introduced today Backgrounder: Modernization of Investigative Techniques Act - Privacy considerations

Modernization of Investigative Techniques Act - Privacy considerations

The Government of Canada is firmly committed to protecting the privacy rights of Canadians. This legislation is the result of extensive consultations and reflects the valuable input of many stakeholders including policing organizations, the telecommunications industry, privacy commissioners and human rights advocates. The privacy considerations included in this proposed legislation strike the right balance between the needs of police and the Canadian Security Intelligence Service (CSIS) to maintain their investigative capabilities in the face of new technology while respecting Canadians’ privacy.  

Lawful interception

Current Criminal Code provisions regarding the interception of communications were first adopted in 1974. Then, in 1984, the Canadian Security Intelligence Service Act was passed which provided the authority to CSIS to lawfully intercept communications for national security purposes.

The lawful interception of communications forms the backbone of many law enforcement and national security investigations, and is reserved for offences including drug trafficking, money laundering, smuggling, child pornography, and murder, as well as acts of terrorism. An invaluable tool in the fight against serious crimes, the conviction rate is over 90% in cases where lawful interception evidence is used in court. In addition, lawful interception of communications may be used to deal with competition issues such as price fixing, bid rigging, and deceptive marketing practices.

Under the Criminal Code and CSIS Act, judges decide whether there is enough evidence to justify intercepting someone’s private communications. Unauthorized interception is, and will continue to be, an offence under the Criminal Code.

Lawful interception is carried out in a way that recognizes Canadians’ rights to privacy including the protections outlined in the Canadian Charter of Rights and Freedoms and other laws. The lawful interception of communications is subject to rigorous reporting and accountability requirements. In addition to the courts, several independent agencies provide oversight including the Commission for Public Complaints Against the Royal Canadian Mounted Police and the Security Intelligence Review Committee.

The purpose of the Modernization of Investigative Techniques Act (MITA) is to ensure that interceptions can still be effected in the face of new technology. MITA will not change existing interception authorities in any way.

Subscriber information

Under MITA, telecommunications service providers will also be required to provide to designated officials, upon request, a subscriber’s contact information. This includes a subscriber’s name and address, telephone number, e-mail address, Internet Protocol address and similar basic identifiers. MITA will not require service providers to collect information they do not normally collect as part of their regular business practices, nor will it require service providers to verify the accuracy of the subscriber information they collect.

MITA includes numerous safeguards in relation to the provision of subscriber information in order to ensure that this information is provided in accordance with the laws designed to protect the privacy of Canadians, and with the Charter of Rights and Freedoms. These safeguards include:

• Access to subscriber contact information will be limited to a small number of employees who will be designated by senior officials within their organizations.

• These designated people will only be able to request subscriber information from a telecommunications service provider if it is for the purpose of performing a duty or function under the CSIS Act, Competition Act or of a police service.

• The specific types of subscriber information that a telecommunications service provider will be required to provide to designated officials are strictly limited. The service provider will only be required to provide subscriber information based on the information provided by requestor. Request for subscriber information will have to be in writing.

• When making a request for subscriber information, the designated person will be required to record the duty or function in the performance of which the request is made and the relevance of the information requested to that duty or function, including any other information necessary to know the reason for the request.

• Subscriber information released will only be able to be used by the agency that obtained it for the purpose for which the information was obtained, or for a use consistent with that purpose, unless permission is granted by the individual to whom it relates.

• The Commissioner of the RCMP, the Director of CSIS, the Commissioner of Competition, and the chief or head of a police service will be required to make certain internal audits regularly conducted to ensure that the requests for subscriber information are being made in accordance with MITA.

• The result of these internal audits will have to be reported to the responsible minister. These reports will include any concerns raised in these audits that should be brought to the attention of the minister, including any corrective action proposed or taken.

• These reports will also be provided to the Privacy Commissioner of Canada by the RCMP and the Competition Bureau, to the Security Intelligence Review Committee by CSIS, and to provincial privacy commissioners by provincial and municipal police services.

• The Privacy Commissioner may conduct audits of the RCMP or the Competition Bureau to ensure that these organizations are complying with MITA as it relates to the release of subscriber information. The Security Intelligence Review Committee may also audit the practices of CSIS as it relates to MITA. In addition, the Privacy Commissioner of Canada will, in his or her annual report to Parliament, describe the powers provincial privacy commissioners have to conduct audits on provincial and municipal police forces in their respective provinces’ access to subscriber information under MITA.

As in the provision of the Criminal Code for interception, in exceptional circumstances such as an emergency, a police officer can request subscriber contact information directly. In these instances, the police officer will be required, within 24 hours of making the request, to communicate to a designated person in their organization all the information relating to the request including the reasons for the exceptional circumstances. The designated person will be required to confirm with the service provider in writing the particulars of the police officer’s request.