Government of Canada

Government of Canada

June 18, 2009 11:29 ET

Government of Canada Introduces Legislation to Fight Crime in the 21st Century

OTTAWA, ONTARIO--(Marketwire - June 18, 2009) - The Honourable Rob Nicholson, P.C., Q.C., M.P. for Niagara Falls, Minister of Justice and Attorney General of Canada, together with the Honourable Peter Van Loan, P.C., Q.C., M.P. for York-Simcoe, Minister of Public Safety, and Mr. Daniel Petit, M.P. for Charlesbourg-Haute-Saint-Charles, Parliamentary Secretary to the Minister of Justice today introduced in the House of Commons two separate pieces of legislation that will ensure law enforcement and national security agencies have the tools they need to fight crime and terrorism in today's high-tech environment.

"Evolving communications technologies like the Internet, cell phones, and PDAs (personal digital assistants) clearly benefit Canadians in their day-to-day lives," said Minister Nicholson. "Unfortunately, these technologies have also provided new ways of committing crimes such as distributing child pornography. We must ensure investigators have the necessary powers to trace and ultimately stop crimes."

While technology has advanced rapidly in the past two decades, law enforcement and national security agencies have faced increased difficulty in protecting the safety and security of Canadians. The Investigative Powers for the 21st Century (IP21C) Act will ensure that law enforcement officials have the tools they need to fight crime in today's modern environment by updating certain existing offences as well as creating new investigative powers to effectively deal with crime in today's computer and telecommunications environment.

"We must provide our law enforcement with the tools they need to keep our communities safe," said Minister Van Loan. "High tech criminals will be met by high tech police. This is a great day for the victims and their families who have been long calling for these legislative changes, and those who work tirelessly every day to ensure that when there is a threat to safety police can intervene quickly."

The Technical Assistance for Law Enforcement in the 21st Century Act will require service providers to include interception capability in their networks. Requirements to obtain court orders to intercept communications will not be changed by this Act, which will require service providers to supply basic subscriber information to law enforcement agencies and the Canadian Security Intelligence Service on request.

Other countries, such as the United Kingdom, the United States, Australia, New Zealand, Germany and Sweden, already have similar legislation in place.

"The safety of our citizens, both in our communities and in cyberspace, is a responsibility that this Government takes very seriously," said Mr. Petit. "The proposed legislation strikes an appropriate balance between the investigative powers used to protect public safety and the necessity to safeguard privacy and the rights and freedoms of Canadians."

The Government carefully considered input provided by a broad range of stakeholders in developing these two pieces of legislation, including the telecommunications industry, civil liberties groups, victims' advocates, police associations and provincial/territorial justice officials. As a result, the Government has ensured that the Investigative Powers for the 21st Century (IP21C) Act and the Technical Assistance for Law Enforcement in the 21st Century Act strike an appropriate balance between the need to protect the safety and security of Canada, the competitiveness of the telecommunications industry, and the privacy rights of Canadians.

An online version of the legislation will be available at www.parl.gc.ca.


Investigative Powers for the 21st Century (IP21C) Act

From distributing child pornography to enabling criminals to coordinate and plan a wide range of traditional crimes, the Internet has changed the way crimes are committed. Many of today's crimes involve the use of mobile cell phones or computers to send messages through the Internet, making some crimes easier to commit and more difficult to detect.

Unlike forensic evidence found at the scene of a crime, digital evidence is scattered across dozens of devices and computer networks. These are often located in different cities throughout Canada, and all over the world. Moreover, the data often has a very short life span making the need to obtain evidence in a timely manner crucial to the outcome of an investigation.

Police are currently investigating crime in Canada with investigative powers that are not up to speed with new technologies. In order to keep pace with modern communications technology and give investigators the tools they need to perform complex investigations in today's high-tech world, legislation must be modernized.

Using the results of consultations that took place over the last few years with stakeholders including provincial and territorial partners, law enforcement officers, privacy advocates and industry, the Government is proposing amendments to the Criminal Code, the Mutual Legal Assistance in Criminal Matters Act (MLACMA) and the Competition Act. These amendments respond to the ever-evolving technological environment, while protecting the human rights of persons in Canada, including their right to a reasonable expectation of privacy.

Issues addressed by this proposed legislation include:

Child sexual exploitation

The Criminal Code currently prohibits anyone from using the Internet to communicate directly with a child for the purpose of facilitating child sexual exploitation (for example, to arrange an in-person meeting with the child, referred to as the "luring offence"). However, it does not prohibit people from agreeing or making arrangements with another person to sexually exploit a child.

A new offence, carrying a maximum penalty of 10 years imprisonment, would be created to prohibit anyone from using a computer system, such as the Internet, to agree or make arrangements with another person for the purpose of sexually exploiting a child. Like the luring offence, this new "communication" offence could also be used in the context of undercover investigations.

Obtaining transmission data

The Criminal Code currently allows police to obtain telephone numbers dialled to and from a target's telephone. The proposed amendments (particularly s. 492.2 of the Criminal Code) would be updated to allow police to obtain data from the telephone and the Internet, by creating a new concept called "transmission data." Transmission data, which does not include the content of a private communication, would be subject to the same threshold of "reasonable grounds to suspect" as the former Criminal Code provision, which only covered telephone data. Such data could be obtained under two different types of judicial orders: a warrant (when the data is acquired in real-time), or a production order for historical data.

Another measure to ensure that a communication can be traced back to the initial service provider is the expedited partial disclosure of transmission data. This measure would allow police to request the disclosure of enough transmission data to trace all the service providers involved in the transmission of specific data. It would not only help trace domestic cybercrime when criminals attempt to hide their tracks, but also enhance international cooperation in this respect. Telecommunications generally pass through many jurisdictions, and it is necessary that all partner states have the ability to quickly determine the origin of a particular transmission during investigations.

Preservation order

The amendments would create a preservation order that would require a telecommunication service provider (TSP) to safeguard and not delete its data related to a specific communication or a subscriber when police believe the data will assist in an investigation. A preservation order is a "quick-freeze", temporary order, and would only be in effect for as long as it takes law enforcement to return with a search warrant or production order to obtain the data. This is not data retention. Contrary to what is the case in some other countries, the amendments would not require custodians of data to collect and store data for a prescribed period of time for all subscribers, regardless of whether or not they are subject to an investigation. A preservation order is restricted to the data that would assist in a specific investigation.

Tracking warrants

Amendments would allow police to remotely activate existing tracking devices that are found in certain types of technologies (such as cell phones and tracking devices in some cars) and would also continue to permit the police to install a separate device that would allow for tracking. A new provision would also be added to allow peace and public officers to obtain the tracking information through a production order.

Possession of a computer virus for the purpose of mischief

Finally, the amendments would update the Criminal Code (s. 342.2) to make it illegal to possess a computer virus for the purpose of committing an offence of mischief. Currently, only the actual or attempted mischief created by the spread of a computer virus is punishable.

Modernizing the Mutual Legal Assistance in Criminal Matters Act and the Competition Act

The proposed modifications to the Criminal Code would also be reflected in the Mutual Legal Assistance in Criminal Matters Act (MLACMA) and the Competition Act to provide police and the Competition Bureau with the proper tools to investigate computer and computer-related crimes while ensuring that the rights of Canadians are protected. The proposed amendments to the Mutual Legal Assistance in Criminal Matters Act would widen the scope of assistance that Canada could provide to its treaty partners in fighting serious crimes, including computer and computer-related crime, at an international level. Amendments to the Competition Act would allow the Competition Bureau to better address significant technology-related challenges that affect its ability to obtain evidence, especially for the violations of deceptive marketing practices and false or misleading representation provisions.

International considerations

The global reach of cybercrime and the transnational nature of organized criminal activity in this area reveal that international cooperation is a necessity in many investigations. The proposed legislative amendments would also create the legislative framework necessary for Canada to ratify the Council of Europe's Convention on Cybercrime and the Additional Protocol to the Convention on cybercrime, concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems.

These important multilateral treaties, which were signed by Canada in November 2001 and July 2005 respectively, are the only instruments that provide for broad-based international cooperation to help in the investigation and prosecution of computer-related crimes. Increasing and strengthening the tools available will assist in obtaining evidence to advance criminal investigations and prosecutions. This reflects the recognition that effective and evolving international assistance mechanisms are vital in combating the ever-growing threat of international criminality.


BACKGROUNDER

Technical Assistance for Law Enforcement in the 21st Century Act

INTERCEPT COMPONENT

The interception of communications is essential for investigating and prosecuting serious crime and combating terrorism. Police forces and the Canadian Security Intelligence Service (CSIS) require lawful access to communications in a number of contexts, including investigations into child sexual abuse, organized crime, drug trafficking, and terrorism.

The Technical Assistance for Law Enforcement in the 21st Century Act will not provide law enforcement or CSIS with any new interception powers, nor will it change or expand existing interception authorities in any way. Rather, it will address the challenges posed by modern technologies that did not exist when the legal framework for interception was designed nearly 40 years ago. Police forces and CSIS will continue to require warrants for interception. This legislation will simply ensure that when warrants are issued, a technical solution is available so that police forces and CSIS can actually intercept communications.

Canada currently has no legal requirement for companies to build interception capability into telecommunications networks. As a result, we now have situations where judicial authorization is granted (a warrant is issued), but cannot be effected because the service provider's network is not intercept capable. Criminals and terrorists are aware of interception "safe havens" and exploit them to continue their criminal activities undetected. As new telecommunications services and products are being rolled out every day, police forces and CSIS continue to fall behind increasingly sophisticated criminal and terrorist groups. There are far too many instances where police forces and CSIS cannot execute judicially authorized interceptions to protect Canadians' safety, simply because of a lack of intercept capability on telecommunications networks.

A technical solution will now be available for police forces and CSIS to execute judicially authorized warrants.

The proposal will require companies to pay for intercept capability in certain new equipment and software, while the Government will provide reasonable compensation when retrofits to existing networks are needed - this is a shared response to a problem that directly affects the safety of Canadians.

Along with sharing the cost of fixing this problem, we have built flexibility into the legislation. For example:

- A number of entities (such as banks, private networks, and charities) are excluded from the legislation's requirements, and will not be required to have intercept capability.

- A three-year exemption will be granted to "small" service providers (those with less than 100,000 subscribers) from certain requirements deemed too costly for them at this time. After the three years, these companies will be expected to fully comply with the requirements of the legislation.

- Upon approval by the Government, exemptions may be granted to service providers for two-year periods, with conditions, to permit innovative technologies to be brought to the marketplace prior to being fully compliant with the requirements of the Act. This will allow service providers to remain competitive in the global marketplace, while developing intercept solutions for these new technologies.

- Service providers will also be free to select the most cost-effective intercept solutions available, and will not be tied to government-determined standards or equipment.

This flexible and gradual approach will avoid placing an undue burden on industry, while at the same time ensuring that telecommunications service providers build and maintain interception capability on a going-forward basis. In doing so, this legislation strikes the right balance between the needs of police forces and CSIS, the safety and security of Canadians, and the competitiveness of industry.

Nothing in this legislation will diminish the considerable legal protections currently afforded to Canadians with respect to privacy or freedom from unreasonable search and seizure.

SUBSCRIBER INFORMATION COMPONENT

Police forces and CSIS also require timely access to basic subscriber information as it is an essential tool for fighting crime and terrorism. Subscriber information refers to basic identifiers such as name, address, telephone number and Internet Protocol (IP) address, e-mail address, service provider identification and certain cell phone identifiers. These basic identifiers are often crucial in the early stages of an investigation, and without this basic information, police forces and CSIS often reach a dead-end as they are unable to obtain sufficient information to pursue an investigative lead or obtain a warrant.

Currently, there is no legislation specifically designed to require the provision of this information to police forces and CSIS in a timely fashion. As a result, the practices of releasing this information to police forces and CSIS vary across the country: some service providers release this information to law enforcement immediately upon request; others provide it at their convenience, often following considerable delays; while others insist on law enforcement obtaining search warrants before the information is disclosed. This lack of national consistency and clarity can delay or block investigations.

A consistent, balanced, well-regulated and accountable solution is needed for law enforcement and CSIS to obtain basic subscriber information in order to protect the public's safety and security, while safeguarding individual privacy interests. The Act will accomplish this by compelling all service providers to release this information and creating an administrative model that provides for a reporting regime which ensures accountability by including consisting of a number of new, privacy-related safeguards. Safeguards include such things as the designation of a limited number of law enforcement and CSIS officials who can request information, record keeping, and both internal audits and external oversight.

This legislation provides law enforcement and CSIS with the updated tools needed in the face of rapidly changing technology, while providing maximum flexibility for industry, and creating rigorous safeguards to protect privacy. In doing so, this legislation strikes an appropriate balance between the needs of law enforcement and CSIS, the competitiveness of industry, and the privacy rights of Canadians.

Contact Information

  • Office of the Minister of Justice
    Darren Eke
    Press Secretary
    613-992-4621
    or
    Department of Justice
    Media Relations
    613-957-4207
    or
    Public Safety Canada
    Media Relations
    613-991-0657