CRIME FIGHT NEEDS NEW TOOLS

Law Enforcement Authorities Need To Be Able To Keep Up With Evolving
Information Technologies, But This Doesn't Mean Sacrificing Privacy

Recently there has been much misunderstanding -- and misleading commentary
- -- about the government of Canada's lawful access proposal. Clarification
is needed both out of regard for the rule of law and the public's right to
know.

First, it is important to correct the record by stating -- in contrast to
reports -- what the government's initiative on lawful access is not: It is
not about intercepting private communications of all Canadians on a routine
basis. It is not about eavesdropping on private communications of Canadians
without judicial oversight. It is not about imposing data retention or
"know your customer" obligations on telephone and Internet companies. It is
not about monitoring the web surfing habits of Canadians or preventing them
from sending anonymous E-mails. And it is not about changing our laws
without consulting interested parties, and without due regard for the rule
of law.

What lawful access proposals are about is the protection of public safety
and ensuring that law enforcement authorities have the ability to keep up
with rapid developments in information and communications technology. For
this new technology is a powerful tool, but in the hands of criminals and
terrorists it can be used in ways that threaten public safety. The
government of Canada needs to update Canadian laws to keep pace with new
technology -- a step already taken by many of our international partners.

As well -- and this appears not to have been appreciated -- since 1974,
police in Canada have been authorized to intercept any kind of private
communications when a court order is issued by a judge who believes on
reasonable grounds that a serious offence, such as child pornography, drug
trafficking, money laundering or murder, has been or will be committed. The
judge must also be satisfied that authorizing the intercept is in the best
interests of the administration of justice and that other investigative
procedures have been tried and failed.

Nothing proposed in the lawful access initiative -- and this needs to be
emphasized -- will change limits spelled out in 1974 when Parliament first
granted interception powers to law enforcement. Nor will it upset the
delicate balance established between the protection of privacy, human
rights and the safety of our citizens, values which underpin our democracy.

As it happens, under the current laws, not all telephone and Internet
companies are required to build intercept capabilities into their networks.
Therefore, when a new technology is introduced, the lack of an interception
capability can hamper investigations, so that even with a court order,
police may not be able to intercept communications. Under the lawful access
proposals, communications providers would be required to update their
systems to allow interceptions under lawful authority. To avoid undue
burden, the proposed law would allow companies to build this capability
gradually over time.

It should be noted that any proposed legislation is a reflection of ongoing
consultation with stakeholders -- not a substitute for it. As part of this
approach, the government has consulted with privacy, industry, police and
civil liberties groups, as well as the public. The objective is to ensure
that the police and CSIS can maintain their investigative capabilities,
that the rights and freedoms of Canadians continue to be protected, and
that no competitive disadvantage is placed on the Canadian
telecommunications industry.

Some news items have focused on the alleged interception of E-mails without
judicial oversight. Such media commentary is as inaccurate as it is
misleading. In consultations, stakeholders clearly expressed the desire
that the government spell out in law that all private communications, no
matter how they are made, are treated the same -- with judicial oversight.
The government is committed to ensuring that all types of private
communications will be treated this way.

Moreover, the issue of data retention, which involves the collection of
data from all users of a communications service -- regardless of whether or
not they are subject to an investigation, has also been of concern in the
consultations and, more recently, in the media. The government is not
proposing data retention. It is proposing a data preservation court order,
which would require a service provider to keep -- for a specified period of
time -- existing data of an individual under investigation to provide
police officers time to seek the necessary court order that will entitle
them to obtain this potentially vital information.

There have also been misunderstandings about the government's proposals to
clarify how police and CSIS should be able to obtain subscriber
information. Basic subscriber information such as a customer's name,
address, telephone number and Internet address can be valuable at the
initial stages of an investigation. Given the lower expectation of privacy
in relation to this information, the proposal would require telephone and
Internet companies to provide this information to designated law
enforcement and CSIS officials without a warrant. But, the proposals
include a number of safeguards to protect privacy, such as a record
including the designated official requesting the information and the
purpose of the request. The record would be retained to comply with privacy
legislation and permit audit and oversight.

As minister of justice and attorney general of Canada, it is my
responsibility to ensure that any updates to the legislation will respect
the privacy and human rights entrenched in laws such as the Canadian
Charter of Rights and Freedoms, the Privacy Act, and the Personal
Information Protection and Electronic Documents Act. My colleague, Anne
McLellan, Minister of Public Safety and Emergency Preparedness, is
responsible for lawful access legislation, which would be thoroughly
debated in Parliament and examined by committee. The tools being proposed
would also be subject to rigorous reporting and accountability
requirements, including review by the Commission for Public Complaints
Against the RCMP and the Security Intelligence Review Committee.

The underlying principle for me here -- as in everything else -- remains
the same: The enforcement of the law must always comport with the rule of
the law. Canadians cherish these principles and nothing in the lawful
access initiative will undermine this.