Protecting Children from Internet Predators Act
Canadian authorities currently operate with investigative powers largely developed in the days of rotary telephones. Rapid changes in technology without the commensurate changes to provide law enforcement and national security agencies with the tools they need to deal with crime and national security threats have made it more difficult for authorities to conduct investigations. While technology has advanced significantly over the past four decades, the legal frameworks and investigative processes available to law enforcement, the Canadian Security Intelligence Service (CSIS) and the Competition Bureau have not kept pace with this evolution.
Bill C-30 will equip police, CSIS and the Competition Bureau with the tools they need to ensure criminals and terrorist groups do not exploit modern communication technologies to hide their illegal activities. All proposed provisions will help strike the proper balance between investigative needs and privacy protection.
The proposed legislation will improve Canada’s ability to work with its international partners to combat crime and terrorism.
Key elements of the proposed Bill
Intercept capability
Telecommunications service providers (TSPs) would be required to implement and maintain a technical capability to enable lawfully authorized interceptions. Current practice of access to the actual content of communications will still require lawful authority as is the case today.
Implementation of the legislation would:
- be flexible and gradual to avoid undue burden on the telecommunications industry;
- apply to newly-installed equipment;
- allow a transition period of 18 months to give telecommunications service providers time to plan and adjust to requirements;
- reduce requirements for smaller service providers for the first three years; and
- permit TSPs to apply for exemptions, as necessary, in certain circumstances.
Basic subscriber information
Telecommunications service providers would be required to provide basic subscriber information to designated police, CSIS and Competition Bureau officials upon request. This identifying information would be limited to a subscriber’s name, address, phone number, email address, IP address, and the name of their service provider. These provisions do not provide access to the contents of an individual’s communications. Basic subscriber information is often required at the early stages of investigations or to fulfill general policing duties. This information can already be provided without a warrant under existing legislation, but only on a voluntary basis, which results in inconsistent access and delay. The Bill will also introduce strict controls and protections for the release of basic subscriber information, including record-keeping and audits, which do not exist today.
Streamlined process for obtaining warrants and orders related to a wiretap authorization
The proposed legislation would provide a single court application process for obtaining judicial authorization for multiple investigative tools related to a single investigation involving the interception of private communications.
Bill C-30 would:
- reduce delays by allowing the judge issuing the wiretap authorization, to grant all other associated warrants or orders;
- enhance judicial oversight by giving the court a complete picture of the investigation;
- allow for all warrants and orders issued or made in connection with the wiretap authorization to expire at the same time; and
- automatically seal all warrants and orders related to the investigation in relation to which the interception authorization is obtained.
New safeguards
This Bill would make the safeguards of “reporting” and “notification” applicable to section 184.4 of the Criminal Code which permits, in exceptional circumstances such as kidnappings and bomb threats, private communications to be intercepted without a court authorization. These amendments would require such interceptions to be publicly reported annually, and would require notification be sent to a person whose private communications were intercepted under these exceptional circumstances within 90 days of the date on which the private communications were intercepted (subject to any extensions, which would be granted by a judge).
Modernization of investigative techniques
Bill C-30 would help to better address cybercrime and crimes committed using modern communication technologies. Examples of these include:
- enabling police to safeguard computer data for a limited period of time through a preservation demand so that a warrant or production order can be obtained prior to the computer data being deleted;
- modernizing the number recorder warrants provision (for telephones) by expanding it to include all forms of telecommunications (transmission data recorder warrants);
- allowing for the police to trace and identify the originating service provider involved in the transmission of a specified communication; and
- raising the judicial threshold to authorize a tracking warrant from a suspicion-based to a belief-based standard in situations involving the tracking of an individual’s movements (by identifying the location of a thing that is usually carried or worn by a person, e.g., cell phone).
Ratification of Convention on Cybercrime
The proposed legislation would also permit ratification of the Council of Europe Convention on Cybercrime and the Additional Protocol to the Convention on Cybercrime, Concerning the Criminalization of Acts of a Racist and Xenophobic Nature Committed Through Computer Systems.
Addressing Hate Crime
The term hate crime (also known as bias-motivated crimes) refers to criminal actions intended to harm or intimidate members of an “identifiable group” because of their race, ethnicity, sexual orientation, religion, or other minority group status. Bill C-30 proposes that section 319 of the Criminal Code’s hate propaganda offences be amended to include national origin, sex, age, and mental or physical disability in its definition of “identifiable group.”
5 Recent Cases where the proposed legislation would have made a difference:
1) 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.
2) In 2007, the RCMP assisted with an international investigation in which suspects located in Canada were attempting to defraud American corporations of approximately $100 million. The investigation required police to find the individuals who were accessing unsecured wireless computer networks in the Toronto area (war driving) to commit these fraudulent activities. The suspects were constantly on the move and police needed the immediate support of the TSPs to determine the location of these networks. However, the service providers would not provide police with the basic subscriber information they needed. Because of the lack of cooperation from the TSPs, it took eight full-time technical investigators five days to finally locate and arrest the suspects. The suspects successfully defrauded victims of $15 million. Had police been provided the information when it was requested, the value of the fraud would have been reduced considerably and police resources would have been used more effectively.
3) In 2009, the RCMP in Alberta were notified of a threat made online to carry out a school shooting. Police had the Internet Protocol address and the date and time the threat was made and police requested that the TSP provide the corresponding basic subscriber information. The provider refused to cooperate, saying there was no urgency because the threat to carry out the shooting was six days old. The following day (Friday before a long weekend) police applied for a production order to compel the TSP to provide the information. By the time the production order was issued, the contact at the TSP had left for the weekend and the police had to wait three days before obtaining the information. When the TSP did provide the information, the police used the information to obtain an additional warrant authorizing the search of a residence. A young person was arrested and remanded pending a mental health evaluation.
4) A child was abducted in British Columbia in 2011. An amber alert was broadcast and, fortunately, the suspect returned the child. However, the suspect was not apprehended and his location remained unknown. Through further investigation, police obtained an IP address associated with the suspect. Police contacted the TSP directly and were advised that it was against policy to provide subscriber information related to an IP address without a Production Order. Police advised the TSP that the suspect had already abducted one child and that other children could possibly be at risk. The TSP decided to provide the information and the suspect was located and apprehended less than 24 hours after police received the information.
5) In 2008, members of an organized crime group in British Columbia were directing an Agent to commit criminal acts, such as extortion and drug trafficking, through messages on cellular telephones. The service provider did not have the capability to intercept these messages and it took the RCMP six weeks to devise and implement a technical solution. The inability of police to intercept the text messages at a critical point in the investigation meant vital evidence was not collected.
BILL C-30 Questions and Answers
An Act to enact the Investigating and Preventing Criminal Electronic Communications Act (IPCECA) and to amend the Criminal Code and other Acts
|
|
|
|
Q1. How will this Bill protect children from Internet predators? |
|
|
Q2. What is lawful interception? |
|
|
Q3. How much is this Bill going to cost the Government of Canada? |
|
|
Q4. Why is the Government ignoring privacy advocates’ concerns with the new legislation? |
|
|
Q5. Can you provide evidence that police are unable to perform their duties under the current regime?
|
|
|
Q6. Can police create a profile or track someone using IP addresses?
|
|
|
Q7. Why can’t the police and law enforcement agencies get a warrant every time they need subscriber information?
|
|
|
Q8. How will basic subscriber information requests be protected from abuse?
|
|
|
Q9. Will this Bill put small telecommunications service providers out of business?
|
|
|
Q10. Is the Government lowering the threshold for existing warrants and orders?
|
|
|
Q11. Why is the warrant process for wiretapping being streamlined? How will this improve investigations?
|
|
|
Q12. Why is it necessary to amend the provision in the Criminal Code that allows for the interception of private communications in exceptional circumstances (s. 184.4)?
|
|
Q1. How will this Bill protect children from Internet predators?
- This legislation will provide law enforcement agencies with an investigative tool kit that is tailored to modern technology. This will give police the tools they need to investigate crimes committed against children in the online context more effectively.
- For example, by enabling police to have more timely and consistent access to basic subscriber information, the identity of suspects may be determined sooner so that investigations can progress more efficiently. The sooner an investigation can be undertaken, the sooner victimized children can be removed from harm’s way.
Q2. What is lawful interception?
- The lawful interception of communications is a vital tool used by law enforcement and national security agencies to investigate crimes, such as child pornography, drug trafficking, and murder, as well as threats to national security.
- Lawful interception involves listening to, recording or acquiring a communication or its meaning. To be lawful, law enforcement and the Canadian Security Intelligence Service (CSIS) may only effect an interception under the authority of the Criminal Code or the Canadian Security Intelligence Service Act.
- The Criminal Code places a number of restrictions on the use of interceptions. Their use is restricted to only listed serious criminal offences, such as terrorist acts, murder, hijacking, or arms trafficking. This investigative technique is authorized once it has passed the Criminal Code’s highest judicial test, including the condition of investigative necessity.
- Subject to certain, very limited exceptions, police and CSIS may only intercept communications upon authorization from a judge.
Q3. How much is this Bill going to cost the Government of Canada?
- This Bill will cost the government approximately $34 million for the first 4 years, and approximately $19 million per year after that.
- To implement the new statute, when averaged out, the cost will be approximately $20 million annually for Public Safety, the RCMP and CSIS for the first 4 years, and $6.7 million per year after that. The funding was set aside in Budget 2006, and the majority of those funds will be used to support the telecommunications industry where authorities need to address urgent investigative gaps.
- The framework proposed under the new statute will be more cost-effective than the current one. Today, law enforcement and national security agencies work with telecommunications service providers – on a case-by-case basis – to put in place needed technical solutions. But these solutions quickly become obsolete as telecommunications service providers update their networks.
- The remaining funds are for the proposed legislative amendments and the ratification of the Council of Europe Convention on Cybercrime and its Additional Protocol on Xenophobia and Racism, and would be incurred by the departments of Justice, Foreign Affairs and International Trade, the Public Prosecution Service of Canada and the RCMP.
Q4. Why is the Government ignoring privacy advocates’ concerns with the new legislation?
- This legislation has been modified as a consequence of consultations held with various stakeholders, including privacy commissioners and privacy advocates.
- These consultations led to significant changes designed to strengthen the privacy safeguards contained in the proposed Act.
- The identifiers to be provided under the basic subscriber information provisions were limited to only those specified in legislation, as opposed to listing them in the regulations.
- The number of identifiers that authorities can receive upon request was reduced from 11 to 6, leaving only the customer name, address, email address, telephone number, IP address and name of the telecommunications service provider.
Q5. Can you provide evidence that police are unable to perform their duties under the current regime?
- The purpose of this legislation is to ensure that police will be able to perform their jobs more efficiently, while maintaining a required level of accountability and transparency. The Bill will bring existing lawful authorities up to date to ensure that law enforcement have an investigative tool kit that is tailored to modern technology.
- One such example is that, today, telecommunications service providers may provide authorities, without a warrant, with basic subscriber information under the Personal Information Protection and Electronic Documents Act. The problem is that there is no consistency across the country in how service providers respond to these requests: sometimes they respond in a timely manner, but often they respond only after considerable delays, if at all.
- Specifically:
- according to the RCMP’s National Child Exploitation Coordination Centre, in 2010, the average response time for a basic subscriber information request was 13 days, and only 72.5% of requests were fulfilled;
- one telecommunications service provider only responds to basic subscriber information requests on Fridays, regardless of when the requests are submitted; and
- another telecommunications service provider only accepts BSI requests via email, which can be problematic in emergencies.
Q6. Can police create a profile or track someone using IP addresses?
- The basic subscriber information provision does not give law enforcement the lawful authority to monitor websites for the purpose of creating profiles of individuals, or to track individuals. Under this legislation, police may request the name and address associated with an IP address using a basic subscriber information request.
- Requests for information from a telecommunications service provider about the website surfing activity or the real-time whereabouts of an individual would need to be made under production orders, warrants or wiretap authorizations contained in the Criminal Code.
Q7. Why can’t the police and law enforcement agencies get a warrant every time they need basic subscriber information?
- Basic subscriber information is often required at the beginning of an investigation and is considered to be “pre-warrant” information. The basic subscriber information that is provided is much less intrusive than what can be obtained with a warrant.
- Policing also includes several responsibilities that do not involve the investigation of crimes, and as such would not be applicable in a warrant context. These general policing duties often involve police seeking to identify contact information to, for example, notify next-of-kin in a traffic accident, return property, or assist lost or runaway individuals.
Q8. How will basic subscriber information requests be protected from abuse?
- The Bill would provide more checks and balances than exist currently relating to requests for this type of information by:
- limiting those who can request basic subscriber information to designated officials (with an exception for emergencies), to a maximum of five designated officials per organization or 5% of the organization’s workforce (whichever is greater);
- putting procedures in place for mandatory record keeping of all requests;
- stipulating that requests be made only to perform a duty or function of the designated official’s agency;
- mandating regular internal audits and requiring that reports on the findings of these audits be provided to the responsible Minister and to the responsible external review bodies (such as the Privacy Commissioner); and
- requiring that telecommunications service providers comply with the confidentiality and security measures included in the regulations.
- The Bill expressly reconfirms the role of review bodies to audit the basic subscriber information controls of an agency within their jurisdiction – such as the Privacy Commissioner for the RCMP and Competition Bureau, and the Security Intelligence Review Committee for CSIS – at any time.
Q9. Will this Bill put small telecommunications service providers out of business?
- The legislation contains a number of mechanisms to minimize the cost to service providers and ensure they are not unduly burdened. These include:
- requiring telecommunications service providers to build intercept capability into new equipment only. Companies are not required to add this capability to equipment in use before the Bill comes into force, as it is much more cost effective to include the intercept capability at the design stage;
- an 18-month transition period to allow telecommunications service providers time to adjust their network planning so that requirements are factored in during the design stage of new networks; and
- an additional 18-month transition period for small providers (less than 100,000 subscribers).
- Exemptions may be granted to telecommunications service providers for up to three years. Such exemptions can be used, where appropriate, in order to permit innovative technologies to be brought to the marketplace prior to being fully compliant with the requirements of the Act.
- Service providers will have flexibility in finding the most cost efficient solution for their particular networks based on their business practices.
- Telecommunications service providers will also be compensated when they assist with interceptions or provide basic subscriber information.
Q10. Is the Government lowering the threshold for existing warrants and orders?
- Existing authorization thresholds will not be lowered by this legislation. All thresholds for new and existing warrants and orders were developed to be consistent with current practice and with the reasonable expectation of privacy attached to the types of information involved.
- These proposals are about bringing existing lawful authorities up to date. This bill provides law enforcement agencies with a tool kit that is tailored to modern technology and modern investigative techniques. Privacy protections have been enhanced, and additional safeguards have been included to ensure the appropriate balance is struck between protecting privacy and ensuring the safety of Canadians.
- The amendments to the tracking warrant would increase the threshold for a tracking warrant to reasonable grounds to believe in situations involving the tracking of an individual’s movement using a thing usually worn or carried by that person. The current threshold for tracking warrants of reasonable grounds to suspect will remain for other types of tracking (such as tracking a vehicle). This amendment would take into account advancements in tracking technology as well as their heightened privacy impact.
Q11. Why is the warrant process for wiretapping being streamlined? How will this improve investigations?
- The streamlining process proposed in the Bill will improve efficiency and accountability by permitting investigators who are applying for court authorizations to intercept private communications to simultaneously apply to the same judge who issued that authorization, for other warrants or orders related to the same investigation, such as a transmission data recorder warrant.
- This will ensure that a single judge sees the entire investigative picture. In addition, it will allow for all the warrants and orders to be sealed simultaneously until a judge orders disclosure.
Q12. Why is it necessary to amend the provision in the Criminal Code that allows for the interception of private communications in exceptional circumstances (s. 184.4)?
- In 2008, in R. v. Tse (otherwise known as the Six Accused Persons case) the British Columbia Supreme Court struck down the s.184.4 wiretap provision allowing for the interception of private communications in exceptional circumstances on the grounds that there was a lack of oversight, a lack of notice to intercepted parties and a lack of reporting requirements to Parliament. The court gave Parliament until September 2011 (since extended) to make it compliant under the Canadian Charter of Rights and Freedoms. Subsequent decisions in Ontario and Quebec have also raised concerns about the constitutional safeguards related to that provision.
- The Government considers that s.184.4 is already compliant with the Canadian Charter of Rights and Freedoms. Nonetheless, to improve the amount of information available on the use of interceptions of private communications in exceptional circumstances and to enhance transparency and accountability, the Bill adds a new annual public reporting requirement, as well as an after-the-fact requirement to notify an individual that their private communications were intercepted.
- Collectively, these requirements would ensure that persons whose private communications are intercepted are notified and that information relating to the number of times police avail themselves of this authority is publicly available. These safeguards will ensure that individual rights and liberties are protected, while law enforcement continues to be able to rely on this important investigative tool.
