Re. “Lawful Access – Consultation Document” August 25, 2002.  

TELECOMMUNITIES CANADA (TC) IS CONCERNED THAT:
•	The discussion paper prepares the ground for a significant extension of law enforcement power. 
•	Service providers should not be forced to have the capability to intercept and store the private communications between individuals outside of the protections stipulated in Canadian Law, and should not be liable to enforced conscription as police deputies.
•	The proposed lowering of standards for production orders that refer to “traffic data” ignores the fact that the distinction between traffic and content is increasingly blurred.
•	The proposed court order for Data Preservation Orders is unnecessary if the purpose is simply to collect evidence where there is a reasonable and probable cause to do so.
•	There should be no degradation of legal protections regarding email through its entire passage from one person to another.

•	The costs of the technology for the mandatory retention of logs will greatly increase the financial burden on service providers though increased disk storage and a range of new logistical issues.  The burden of these costs will be especially great on small and not-for-profit service providers such as those represented by TC, and may force premature closure of important services.
•	By requiring the service provider staff (or even volunteers of small providers) to collect that information and to deliver it to the police, these personnel will inevitably gain access to much more private data than is the case now, without provision to prevent them from using it unscrupulously.
•	Enforcing the capability of service providers to intercept and store private communications, with its associated perceived increase in broad public surveillance, will exert a chilling influence on public discourse that contributes greatly to Canadian creativity and innovation.
•	The discussion paper presents the possibility of an unacceptable extension and fastening of the eyes, ears and hands of the state deep in the private realm of innocent people going about their everyday lives.

FREEDOM OF EXPRESSION AS THE CONTEXT OF OUR CONCERNS
Telecommunities Canada (TC) is the national organization representing community networks, freenets and many community-based information and communication technology-based initiatives.  TC consists of three provincially-based regional networks and almost a hundred organizations, which in turn serve many thousands of society members and even more service users.  
Our mission is “to ensure that all Canadians are able to participate in community-based communications and electronic information services by promoting and supporting local community network initiatives” and “to represent and promote Canadian community networking movement at the national and international level”.

Universal Declaration of Human Rights
Telecommunities Canada maintains the fundamental right of individuals to preserve their privacy by limiting the release of any information that personally concerns them.  We maintain that citizens are the sovereign political power in a democracy, such as Canada, and that we do not delegate either our authority or responsibility.  The Universal Declaration of Human Rights (UDHR) is very clear on the issue of receiving and imparting information without interference in both Articles 12 and 19:
“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference, and to seek, receive and impart information and ideas through any media and regardless of frontiers.” Article 19, (UDHR).
“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence,…” Article 12, UDHR.
A Canadian, John Humphrey, wrote the blueprint for the UDHR, which is widely acknowledged as the most important general statement of principles on human rights. TC believes that the importance of general principles, such as those reflected in the UDHR, is that they should be retained rather than discarded even when they appear inconvenient. According to the Canadian Department of Justice, Canada is currently a world leader in introducing human rights laws. TC thinks it is paramount that Canadians maintain our respect for the primacy of human rights even in the face of external pressure.

The Canadian Supreme Court
The Canadian Supreme Court in at least two significant judgments reinforces the UDHR interpretation of freedom of expression and protection of privacy. 
The proposed expansion of Lawful Access threatens the right to information privacy, as established in R. v. Dyment, which “derives from the assumption that all information about a person is in a fundamental way his own, for him to communicate or retain about himself as he sees fit.”
A clear statement about the unauthorized use electronic surveillance technologies being unconstitutional was made in R. v. Duarte to the effect that, 
“The regulation of electronic surveillance protects us from a risk of a different order, i.e., not the risk that someone will repeat our words but the much more insidious danger inherent in allowing the state, in its unfettered discretion, to record and transmit our words.
The reason for this protection is the realization that if the state were free, at its sole discretion, to make permanent electronic recordings of our private communications, there would be no meaningful residuum to our right to live our lives free from surveillance. The very efficacy of electronic surveillance is such that it has the potential, if left unregulated, to annihilate any expectation that our communications will remain private.  A society which exposed us, at the whim of the state, to the risk of having a permanent electronic record made of our words every time we opened our mouths might be superbly equipped to fight crime, but would be one in which privacy no longer had any meaning.”
The federal government has argued that Lawful Access legislation is required in order to translate existing law enforcement capacity into the digital era. Yet it is far from clear that any new legislation is required; considered application of existing law can have the same effect. Instead, the government is proposing legislation that goes far beyond the narrow technical goals of translating existing law enforcement capacity, and instead is using this as an opportunity to expand law enforcement powers.
As yet we have heard no substantial case that has been made for this extension of Lawful Access.  It is unacceptable in a free society that the agencies of the state be free to use this technology at their sole discretion.  The protections we have in Canadian Law need to be applied to new technologies as they emerge. There should be no degradation of the legal protections offered to the individual. 

COMMENT ON SPECIFIC ISSUES OF CONCERN
Intercept capability
Canada Post workers are not allowed to open the mail that passes through the post office, even if they are willing to photocopy it for retention and send the original on to its destination. Neither should service providers be forced to have the capability to intercept and store the private communications between individuals outside of the protections stipulated in Canadian Law.  The Internet and its communication forms such as chat and email are quickly becoming a part of the everyday private communications between individuals where there is a “reasonable expectation of privacy”.  These individuals have a right to privacy that is reflected in the Canadian Constitution, Sections 7 and 8. Any limitation to that privacy must be demonstrably justified.

Production Orders:
Service providers should not be liable to enforced conscription as police deputies.  No one working or volunteering for a service provider should have to violate a user's privacy by executing the actual interception. This route is open to both potential abuse by service providers and dangers to them for which they are neither adequately trained nor prepared.  
 “Anticipatory Orders” as stipulated should be subject to the same high standards of other orders so as to ensure they are not use for evidence “fishing expeditions” where no substantial evidence exists to justify issuing an order.

Specific Production Orders:
When aggregated traffic information is retained from routers, radius servers, wireless networks and web server logs, many kinds of personally identifying information can potentially be extracted. The browsing activities of individual on the Internet can and should be very private in many instances. There are many instances of individuals using the Internet as a confidential and impersonal way of finding important information about matters around which there is perhaps a social stigma.  Their web browsing history may disclose extremely sensitive personal information that could be used coercively by authorities to obtain other information from them.

Data Preservation Orders:
It is of considerable concern to us that the police, or some other unspecified public official, will be authorized to issue such orders without seeking the authority of the court.  It has not been made clear why is it not possible to simply issue and execute a warrant to collect evidence where there is a reasonable and probable cause to do so. We are also concerned that the meaning of what constitutes “preservation” is unclear, as is the requirement for the specificity of what is to be preserved. The preservation time of six months is in our opinion too long. We question why it is necessary to preserve data, should such a preservation order be necessary, beyond the few days it takes to get a warrant.

Interception of Email:
From most users’ perspective, email is a direct communication between sender and receiver, not a “document.”  On the contrary, they are more like "private communications" that do indeed create a reasonable expectation of privacy.  Email is certainly no less private after it has left the personal computer of the sender, or before it reaches the receiver. The distinctions of where an email message resides at any particular moment are highly technical in nature and invisible to users.

Costs
TC is also very concerned about the potential implementation costs to attain the capability of the proposed mandatory retention of logs of all Internet transactions for a period of up to six months. One of the effects of the considered Lawful Access extensions as presented is to transfer costs from police and the taxpayer to service providers. The burden of these costs will be especially great on small and not-for-profit service providers such as those represented by TC, and may force premature closure of important services. By imposing the costs of Lawful Access on not-for-profit service providers, the government undercuts the commitment it has made to not-for-profit service as a key tool in bridging the digital divide.

TELECOMMUNITIES CANADA SPECIFICALLY RECOMMENDS THAT:
•	The case for these new measures should be made in a full and open process that is subject to public scrutiny and debate. Conversely, if no substantial grounds can be provided for the suggested extension of lawful access, then all new legal provisions should provide at least the same level of privacy protection as under current law.
•	The government present draft legislation for public consideration.  
•	As with wiretaps, the police should only be able to intercept email, chat or any other form of communication where there is a “reasonable expectation of privacy” if a judge has so ordered.
•	Traffic data and Data Preservation Orders should be subject to the same standards of privacy protection as content.
•	Email messages should be considered to be comparable to mail, not to documents and thus subject to the highest standard of privacy.
•	The burden of costs on small and not-for-profit service providers needs to be assessed and addressed.

CONCLUSION
The gathering and secure storage of highly personal and confidential information is not one to be undertaken lightly, and is certainly not a task for which most service providers are equipped or trained.  In doing so, these personnel and volunteers will inevitably gain access to much more private data than is the case now, without provision to prevent them from using it unscrupulously or divulging it accidentally.  Indeed, such a lightly guarded repository of sensitive information itself becomes an easy target for fraud and theft
Canadians are used to enjoying privacy rights and liberties, some other countries do not extend to their citizens.  We are taught that these freedoms are intrinsic to being Canadian, to our creativity and innovation.  The chilling influence on public discourse would be to the detriment of much we hold important about this country. We believe that surveillance should only be used when there are “no other means” available to police.
TC is also concerned that the proposed extension of Lawful Access will not be any more effective in halting crime while it effectively reduces civil liberties. Legislation formed within the proposed guidelines would in our opinion be unlikely to achieve the goals of maintaining public safety.  Criminals intent on doing public damage will unlikely be caught in such a broad net.  Rather, a more focused vigilance within the context of broad social justice is the proper price of the freedoms we have come to enjoy. Canadians should be fully consulted on whether they will feel any safer as a consequence of these provisions.
Telecommunities Canada requests more public consultation on matters as far-reaching and consequential as these.

Respectfully submitted by: 

Peter Royce 
on behalf of Telecommunities Canada.