Canada's Big Brother Plan to Reshape the Internet

[David Farber <dave () farber net>]

Begin forwarded message:

From: Michael Geist <mgeist () pobox com>
Date: August 22, 2005 7:43:34 AM EDT
To: dave () farber net
Subject: Canada's Big Brother Plan to Reshape the Internet


Dave,

Of possible interest -- my weekly Law Bytes column examines the  
lawful access plan in light of Canadian Justice Minister Irwin  
Cotler's announcement late last week that the Canadian government  
plans to move forward on the initiative this fall.

Although the specifics of the actual bill remain unknown, the spring  
2005 consultations provided a good sense of what Canadians can expect.

If enacted, lawful access would compel Internet service providers to  
install new interception capabilities as they upgrade their networks.  
The country's major ISPs, who provide service to the majority of  
Canadians, will eventually be capable of intercepting data, isolating  
specific subscribers, and removing any encryption or other changes  
that they make to data transmissions.
The proposal will likely contain an exemption for smaller ISPs, but  
all will be required to report on their readiness to conduct  
interceptions six months after the law takes effect.  Failure to  
comply with the new standards would carry stiff penalties with fines  
of up to $500,000 and potential imprisonment for five years.

Lawful access would also provide law enforcement authorities with a  
wide range of new powers.  For example, authorities could apply for  
new "production orders" with which they could compel disclosure of  
tracking data such as cell phone usage as well as transmission data,  
including telecommunications and Internet usage information.

Law enforcement authorities would also have access to a new  
"preservation order" that could be used to compel ISPs to preserve  
Internet usage information for up to three months, forcing ISPs to  
store far more data than is currently the case.

Among the most troubling aspects of the lawful access proposals are a  
series of new powers that are not accompanied by any judicial  
oversight.  Law enforcement authorities, including the police, CSIS  
agents, and even Competition Bureau authorities, will have the right  
to obtain ISP subscriber information simply upon request without a  
warrant.  In fact, the proposals even envision ISPs responding to  
such requests in certain situations within 30 minutes based solely on  
a phone call.

The column argues that before supporting this initiative, Canadians  
ought to ask some tough questions.  I ask five:

1. Are all these new powers necessary?
2. Do the new powers contain sufficient judicial oversight?
3. Are the lawful access provisions constitutional?
4. Is lawful access strictly designed to address the threat of  
terrorism?
5. Will lawful access actually prove successful in battling Canadian  
terror?

Read the column for my answers which, not surprisingly, are critical  
of the lawful access initiative.

Toronto Star version at
<http://geistlawfulaccessplan.notlong.com>

Freely available hyperlinked version at
<http://www.michaelgeist.ca/index.php?option=content&task=view&id=935>

MG
--
**********************************************************************
Professor Michael A. Geist
Canada Research Chair in Internet and E-commerce Law
University of Ottawa, Faculty of Law
57 Louis Pasteur St., Ottawa, Ontario, K1N 6N5
Tel: 613-562-5800, x3319     Fax: 613-562-5124
mgeist () pobox com              http://www.michaelgeist.ca




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