With Internet use skyrocketing across the country, industry experts warn individual privacy could be compromised with new legislation that will make it easier for law enforcement to snoop into our online activities.
Last month Statistics Canada reported that two-thirds of Canadians now surf the web on a regular basis and their concerns about privacy are rising as well. Industry experts say Canadians have reason to be concerned thanks to the Modernization of Investigative Techniques Act (MITA).
The act, also known as Bill C74 and Lawful Access, requires all telephone and Internet service providers (ISPs) to provide "interception capability" to assist law enforcement officials. It was first tabled by the Liberal government in November 2005 and made it through its first reading, but ended up in limbo when parliament was dissolved for the federal election.
The new Conservative government is expected to reintroduce the bill sometime this year. Industry experts are concerned about the far reaching implications it will have for Canada's privacy laws, as well as cost and manufacturing implications for the country's ISPs.
One of the major implications will be "putting the technology in place to allow for lawful access by law enforcement, which will be expensive and those costs will be passed onto the consumer," says Michael Power, partner and chief privacy officer with the Ottawa office of law firm Gowling Lafleur Henderson.
"The search and seizure of telecommunications by law enforcement authorities is currently allowed under the laws of Canada, like the criminal code, the CSIS Act, the Competition Act, the Provincial Police Act and others. But, under the act law enforcement agencies will be able to obtain subscriber data upon request from an ISP."
Mr. Power says currently ISPs can release this information, but they aren't required to do so. It will also require them to produce tracking and transmission data. At the present time law enforcement officers must have "reasonable grounds to believe" in order to obtain a search warrant, but the bill changes the law so reasonable grounds to suspect are sufficient.
"This is a big difference," says Mr. Power. "The Canadian Bar Association, privacy groups and civil liberty groups have a number of concerns about these kinds of proposals. There's a concern about the threat to privacy and lack of oversight."
A local representative with one of the country's biggest ISPs says his company intends to comply with the legislation if this bill is passed, but there are three main areas causing concern.
"Telus has been fully supportive of Lawful Access in principle, but when we look at the detail there are some concerns and one of them relates to operational cost," says Parke Davis, senior regulatory advisor for Telus. "In the past, the government has paid operational costs in terms of Lawful Access and we hope they would in the future but that's not clear in the legislation."
Mr. Davis says another area that wasn't fully addressed regards standards and how ISPs would be required to implement the changes.
"Individual companies and the industry would prefer to move forward with this bill as standards are developed and built into the equipment by the manufacturer," he adds. "You don't normally want to add onto existing systems with an ad hoc arrangement to provide these Lawful Access requirements."
Mr. Davis says the legislation would also move Canadian ISPs ahead of their American counterparts in terms of requirements. This situation could prove problematic and costly because the majority of manufacturers are U.S.-based and the available technology wouldn't meet these new Canadian standards.
The third area of concern for ISPs, he says, is the development of a suitable transition period for a proper rollout if the legislation is passed. The legislation didn't give a timeline.
Although Bill C74 wasn't referenced in Prime Minister Stephen Harper's throne speech, Ottawa's local expert in the field of Internet law believes it's only a matter of time before the legislation is reintroduced.
"I think they may also go further than the Liberals did, for example by providing greater financing to the ISPs to help facilitate it," says Michael Geist, the Canada research chair of Internet and e-commerce law at the University of Ottawa. "While the costs associated with the new requirements will be passed along to consumers, I think the cost goes beyond dollars and cents. The real problem is an increase in the amount of surveillance we have, but also decreased oversight, which could be a particularly problematic combination."
Dr. Geist says these changes to Internet privacy laws may be needed in some circumstances, but current laws seem to be sufficient.
"Perhaps there is a case to be made that they need to increase surveillance, but I don't think the case has been made that it's necessary because we've seen arrests in Canada with the arrest of the alleged terrorists in Toronto this summer using the Internet for all sorts of investigative purposes," he says. "If you can make the case and a majority of Canadians agree that security is important, then once you make that move I think you have to increase the amount of oversight, not decrease it."
Dr. Geist points out that the government may have trouble convincing the public about the bill's validity because cries of "Big Brother watching" are made every time this issue has been brought forward.
"Another part of the problem is it was supposedly designed for anti-terrorism purposes, but it quickly morphs into being used for all sorts of things," he adds. "When I met with justice officials about a year ago to discuss what the government was thinking, terrorism was barely discussed. The focus then was other cyber-ills like spam. It's important to recognize that once we reshape our network, that we can't undo this and the potential for this legislation to be misused is very real."
