Liberal MP Marlene Jennings has taken it upon herself to re-table her lawful access bill, called the Modernization of Investigative Techniques Act (MITA). Bill C-285 proposes to facilitate lawful interception of information transmitted via telecom service providers (TSP). The purpose delineated in the Act is:
“… to ensure that [TSPs] have the capability to enable national security and law enforcement agencies to exercise their authority to intercept communications, and to require service providers to provide subscriber and other information, without unreasonably impairing the privacy of individuals …”
By way of technological background, when an email is sent to an individual or a company via RIM’s BlackBerry EnterPrise Server Software, the message is first sent to the EnterPrise server, where it is encrypted. It is then forwarded to RIM’s Network Operations Centre to be redirected to the receiver mobile device, where it is decrypted. It is the highly secure and private network created by such locked-down wireless infrastructures, such as BlackBerry, that is at issue. As stated by Supt. Pat Fogerty, Combined Forces Special Enforcement Unit of British Columbia, the hard to intercept wireless messages makes BlackBerry a device of choice for both criminals and law enforcement.
Furthering the move for a change, Jennings proposes that TSPs should make their devices intercept ready to enable law enforcement officers to wage a battle against crime. Inevitably, this gives rise to many privacy concerns since these lawful access initiatives create a possibility of new intrusive powers, especially those without any court oversight. While one school of thought may propose that those who are using the technology right and not doing anything illegal have nothing to worry about, that argument is certainly not convincing enough.
The tremendous application and use of the BlackBerry among the business community illuminates the extent of reliability, comfort and trust these personnel have on the device’s secure network. Additionally, there is skepticism that if the bill becomes law, the law enforcement agencies will be monitoring everyone’s email and cell phone uses. Some have also gone as far to express concerns that a national database will be created with a record of everyone’s email/phone activity. While these allegations appear to be mere myths, a valid point of contention is the absence of court oversight in obtaining both the intercepted information and subscriber information.
Section 17(1) of Bill C-285 indicates that it is only upon a written request of a designated person (including The Commissioner of the Royal Canadian Mounted Police, or a class of such employees, whose duties are related to protecting national security or to law enforcement) that the TSP shall provide any information in its possession or control respecting the name and address of any subscriber and respecting any other identifiers associated with the subscriber. Section 17(2) indicates that the purpose of the request mandates that the request is made in performing a duty or a function of the law enforcement or security agencies. The construction of s.17 appears to balance the interests of the competing stakeholders- the privacy interest of the consumer of the TSP services and the security interest of the law enforcement agencies.
Section 18 of the MITA, however, provides for an ‘exceptional circumstances’ provision. Under it, any police officer may request a TSP to provide to the officer the information referred to in subsection 17(1). The provision is conditional on the fact that: a) the officer believes on reasonable grounds that the urgency of the situation is such that the request cannot, with reasonable diligence, be made under subsection 17(1); b) the officer believes on reasonable grounds that the information requested is immediately necessary to prevent an unlawful act that would cause serious harm to any person or to property.
Essentially, the concern here is that warrantless surveillance based on a suspicion on “reasonable grounds” is enough to obtain subscriber information under s. 18. Arguably, bestowing such a power on a law enforcement agent is a valid cause of unease and anxiety on privacy grounds. The bill appears to rectify this ‘easy to misuse’ provision by providing for accountability and transparency in s. 18(3). This subsection requires that the police officer, within 24 hours of making a request under s. 18(1), communicate to a designated officer all the information relating to the request. The designated person is required to confirm to the TSP the particulars of the request, including noting that it was made in exceptional circumstances, in writing and to also keep a record of the request that includes those grounds.
The proposed bill appears to implicitly acknowledge possible misuses of the provisions and aims to provide sufficient protection to minimize such potential misuse. Nevertheless, although in different forms, the bill has been proposed numerous times before and has failed (the last time because of the dissolution of Parliament before its final reading). Despite of the apparent evermore need of required benefits of the bill against various serious criminal offences- drug trafficking, money laundering, smuggling, child pornography, murder and acts of terrorism, it is still tough to predict the fate of the bill this time around.