The Canadian Association of Chiefs of Police (CACP) is asking Canadians to consider the views of law enforcement as they debate what we refer to as ‘ lawful access’, or Bill C-30 – “An Act to enact the Investigating and Preventing Criminal Electronic Communications Act and to amend the Criminal Code and other Acts.“
President of the CACP, Chief Dale McFee: “The CACP has endorsed lawful access legislation since it was first introduced by government in 2002. Canadians more than understand the exponential growth in technology which has occurred over the last few decades. Yet, law enforcement is being asked to protect the communities we serve based on legislation introduced in 1975 – the days of the rotary phone.”
The Global Internet, cellular phones and social media have been widely adopted and enjoyed by Canadians, young and old. Many of us have been affected by computer viruses, spam and increasingly, bank or credit card fraud. These new medias are also being used as a safe haven for serious criminal activity – identity theft, child and sexual exploitation, gangs, organized crime and national security threats.
“This is a huge challenge facing law enforcement agencies. We collectively need every reasonable tool to prevent such activity from happening in the first place or to investigate and lay charges when it does. We also need the privacy safeguards to ensure we’re accountable in the use of these tools and Bill C-30 provides just that” states OPP Commissioner Chris Lewis.”
“The debate – balancing community safety and privacy rights – is a debate which must occur and we are very mindful and respectful of the views of all Canadians. The CACP, however, is disappointed in the amount of misinformation and rhetoric that is clouding an important discussion on this issue. It stems from appealing to the greatest fears of Canadians and suggesting that law enforcement may misuse such legislation. It has been propagated that law enforcement could freely monitor the ‘surfing habits of Canadians’ and do so without a warrant. “Nothing could be farther from the truth” states Vancouver D/Chief Warren Lemcke, who is also Chair of the CACP Law Amendments Committee.
Obtaining content or monitoring (tracking) communication requires a warrant and this condition remains with C-30. Basic subscriber information (BSI) is an on-going challenge for law enforcement to obtain. In some cases ISP’s provide the information, others will not, or often there are lengthy delays. The RCMP’s National Child Exploitation Centre states that “in 2010, the average response time for these requests was 12 days.” During this time, victims continue to be victimized.
In its report Every Image, Every Child – Internet-Facilitated Child Sexual Abuse in Canada the Office of the Federal Ombudsman for Victims of Crime outlines the very serious issues faced by law enforcement. Canada’s Federal Ombudsman for Victims of Crime, Sue O’Sullivan, further underlined the importance of the need for lawful access to Parliament in her testimony before a Senate Standing Committee on Bill C-22 (An Act respecting the mandatory reporting of internet child pornography by persons who provide an internet service):
|While I am fully supportive of this bill, I must also point out that there is still much more to be done in order to effectively address the issue of Internet-facilitated child sexual abuse. Bill C-22 will not, in and of itself, eradicate child sexual abuse material from being created or shared; nor will it address the challenges that law enforcement will face in pursuing these cases without the necessary authority to compel ISPs to provide basic customer name and address information in order to identify and locate the individuals associated with a particular IP address.|
|Currently in Canada, ISPs are allowed but not obliged to provide customer name and address information without a warrant. Though many companies do cooperate, some can and do refuse to cooperate with law enforcement. In fact, according to the National Child Exploitation Coordination Centre in 2007, 30 per cent to 40 per cent of requests are denied. Without this information, law enforcement may be forced to close a case before a detailed investigation ever begins.|
One example that demonstrates the need for this type of information (further examples are provided in the attached correspondence):
|In December 2010, New Brunswick RCMP began to investigate a case of peer-to-peer sharing of child pornography. Police suspected that up to 170 IP addresses were associated with a single individual. These IP addresses belonged to a TSP known for refusing to voluntarily provide subscriber information without a court order so the police applied for one.|
|As a result, the basic subscriber information was provided 15 days later and by that time the suspect’s Internet activity had stopped. In September 2011, the suspect resumed his online activity and, that time, the TSP provided the basic subscriber information voluntarily. This cooperation allowed the police to act quickly and arrest the suspect at his residence in October 2011. The suspect was charged with possession and distribution of child pornography. Furthermore, police discovered that he was also producing child pornography and he was charged with that crime as well. The suspect also pled guilty to charges, which included the abuse of two young males from New Brunswick. If the police had been able to obtain the information shortly after the investigation began, the investigation could have proceeded to the arrest stage more rapidly and the suspect’s sexual abuse could have been stopped sooner.|
The CACP believes that Bill C-30 provides greater oversight to obtain BSI than within the current environment. Today, obtaining basic subscriber information is completely ad hoc and uncontrolled. There is no certainty that basic information can be provided in a timely and consistent manner to law enforcement for investigative purposes.
“Under this new lawful access legislation, strict procedures for recording, reporting and auditing of all requests to obtain BSI are put in place. This information is documented and provided to senior Public Safety officials throughout Canada, including Privacy Commissioners. Those within law enforcement who can obtain BSI information is strictly limited. There is actually significantly more oversight with this legislation than what exists today” Chief McFee reaffirms.
To promote balanced discussion on this issue, the Canadian Association of Chiefs of Police have prepared a document entitled “Simplifying Lawful Access – Bill C-30.” It is available on the CACP website. The document compares today’s environment versus that proposed under the new legislation, provides answers to ‘frequently asked questions’ and a series of Case Studies describing the utility of BSI to law enforcement (when it works and when it does not).
Our hope is that Members of Parliament, the media and Canadians as a whole will take the time to view the importance of this legislation through the lens of law enforcement.