Legislation intrusive, unnecessary

David Canton - for the London Free Press - September 17, 2005 Read this on Canoe

George Orwell's novel 1984 is becoming more of a reality with "big brother" seeing and hearing everything.

The federal government is considering new "lawful access" legislation that will allow police and security agencies to conduct surveillance on the Internet without a court order.

The legislation merits serious scrutiny when it is tabled this fall. While nobody wants to make it difficult for police to fight crime, the state's powers must be balanced with the average person's rights and freedoms.

They must also be proportionate and relevant to the need and effective to meet the stated purpose. All too often, terrorist events of the last few years have been used to justify increased state powers that may have no real effect to combat terrorism.

Lawful access refers to the interception or surveillance of communications. To be considered lawful, it must be authorized by law or executed in a manner consistent with the Canadian Charter of Rights and Freedoms.

Current legislation, such as the Criminal Code, the Competition Act and the Canadian Security Intelligence Service (CSIS) Act, provide for lawful access. Information can be seized lawfully from telephones, cellphones, satellite communications, e-mail and the web.

This type of lawful access can only be used with legal authority. This can be granted by a warrant or permission from a judge. To obtain a warrant there must be reasonable grounds to believe that an offence has been committed.

Advances in technology and new attitudes toward terrorism have led to the desire for an increased ability for police and other government agencies to have access to private communications.

The proposed bill would increase police powers to obtain information from cyberspace and phones and require Internet service providers to adopt specific technical changes to make that easier.

The proposed legislation places a requirement on Internet service providers to hold data and records of clients' use. They are required to produce these records and data within 30 minutes of it being requested -- and on request, with no warrant. This will be difficult and costly to implement.

There is a retention component as well as a production component to the proposed legislation. A proposed data preservation order could require an Internet service provider not to delete data or information of a client who is subject of an investigation for a specified period.

Proponents of the new legislation argue criminals and terrorists are taking advantage of new technologies to assist them in criminal activity. They believe the legislation has to evolve the way technology has. They are concerned not all telecommunications service providers are forced to include intercept capabilities in their networks.

Many question whether individuals' privacy will be protected. In response, the government says the legislation that provides for lawful access is subject to privacy legislation and the Canadian Charter of Rights and Freedoms.

The government maintains there are many forums where complaints can be brought, including the commission for public complaints against the RCMP, the security intelligence review committee and the privacy commissioner. The Federal Court of Canada may review all decisions.

Many ask whether the benefits of the new legislation outweigh the intrusion on individuals and the costs to service providers.

Opponents suggest it is not clear whether the new legislation allowing greater access will result in increased security for Canadians.

There has been no evidence less intrusive means would not achieve the same result.