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January 23, 2012

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Law Times • January 23, 2012 FOCUS Critics prepare to battle lawful access bill But government says it's bringing laws into 21st century BY MICHAEL McKIERNAN Law Times P rivacy advocates are turning up the heat on the federal government over its lawful access legislation ahead of its anticipated return to the floor of Parliament this winter. The government is expected to roll three bills from the previous session, C-50, C-51, and C-52, into one new piece of legislation. The bills would bolster police surveillance powers by making it easier for them to get court orders and warrants in order to track online activity. "It's mobilizing different intermediar- ies to help survey individuals in various ways," says Tamir Israel, a staff lawyer at the Canadian Internet Policy and Public Interest Clinic (CIPPIC). "Our main con- cern is that it doesn't really do it in any kind of targeted way and it's not really grounded in any legitimate need. It's essentially using the fact there has been a technological change to justify a pretty dramatic increase in surveillance capacity and powers. It dra- matically changes what law enforcement will be able to get at lower standards." CIPPIC, along with the Canadian Civil Liberties Association and others, has col- lected more than 75,000 signatures for their Stop Online Spying campaign against the proposals. The group has been joined in its criticism by privacy commissioners across the country, including federal Privacy Commissioner Jennifer Stoddart, who said in an open letter to Public Safety Minister Vic Toews late last year that she had "deep concerns" about the pro- posals. "These bills went far beyond simply maintain- ing investigative capacity or modernizing search powers," wrote Stoddart. "Rather, they added sig- nificant new capabilities for investigators to track and search and seize digital information about individuals." Stoddart's Ontario Ann counterpart, Cavoukian, has orga- nized a symposium on Jan. 27 to coincide with International Privacy Day in order to raise aware- ness of legislation that she says "should con- cern us all in a free and democratic society." Toews has defended the legislation, claim- ing it'll help police keep pace with child por- nographers' and organized crime groups' use of technology for their activities. "We are proposing measures to bring laws into the 21st century and give police the tools they need to do their job," he told Parliament in November as he vowed to reintroduce the bills in some form. CIPPIC's Israel is particularly concerned about a provision that will force Internet ser- vice providers and other telecommunications firms to turn over subscriber data on request without a warrant. That includes the name, address, phone number, and e-mail address of customers, as well as Internet protocol The proposed legislation 'dramatically changes what law enforcement will be able to get at lower standards,' says Tamir Israel. addresses and device identification numbers. "ISPs are a one-stop shop for a ton of informa- tion on a ton of people," says Israel. "You can do a lot with that kind of information, and it raises concerns for mass surveillance. They don't even need a reason to suspect the informa- tion will be useful to an investigation, so it takes away the need to do any kind of assessment. It's an open invitation to do fishing expeditions on innocent Canadians." Mark Hayes, founder of technology law firm Hayes eLaw LLP, says the proposed requirements for tele- communications companies to build into their systems an apparatus that allows for the interception of communications could also affect market competitiveness. Smaller providers will get a grace period of up to three years to meet the standards, but Hayes says costs could still be prohibitive. "There's significant concern that while there's going to be a cost to the big provid- ers like Rogers and Bell and so on, they'll be able to spread it over a much larger num- ber of subscribers. But the smaller service providers are going to get squeezed much harder in terms of their ability to be able to comply with this." While they wait for the government to table the main lawful access package, activ- ists like Israel have occupied themselves with another bill currently before the house that touches on the issue. Bill C-12 proposes amendments to the federal Personal Information Protection and Electronic Documents Act that would allow private companies to turn over personal information to law enforcement officials vol- untarily without having to wait for a court order or warrant. At the same time, the bill emphasizes that organizations are under no legal obligation to verify that the requester has the necessary lawful authority before hand- ing over the data. Israel says that reduces the incentive for companies to refuse unreason- able requests. "It fits into a grander normative shift," he says. "It's saying it's OK for these types of disclosures to be made and we should be encouraging them, but that's not necessarily the historical reality." According to Hayes, the lack of advice in the bill on co-operation with law enforce- ment could cause difficulties for compa- nies. "In the past, organizations were able to tell law enforcement to go and get a warrant," he says. "Now they're in a more tricky situation because they have to make a decision themselves." Israel expects many companies will find it hard to resist requests without the old barriers in place. "The pressure to voluntarily comply with these types of requests from police is very high. You'll get police officers who won't accept it when the companies say they're just protecting their customers and accuse them of helping criminals." LT PAGE 11 Recruiting? Post your position on GREAT RATES. GREAT REACH. GREAT RESULTS. Contact Sandy Shutt at sandra.shutt@thomsonreuters.com for details. www.lawtimesnews.com JobsInLaw 1/2 pg 5X.indd 1 2/9/11 9:58:11 AM

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