OTTAWA – Independent Internet providers are cautiously optimistic that a parliamentary committee’s recommendations this week not to change Ottawa’s policies restricting police and intelligence agencies’ lawful access to subscriber metadata and encrypted communications will be adopted by a new federal national security strategy.
Christopher Hickey, director of industry affairs at the Canadian Network Operators Consortium, said in an interview Thursday he’s hopeful the recommendations from the House of Commons public safety and national security committee will be part of the Trudeau government’s new national security framework.
“I can’t read the tea leaves today that it will become government policy,” he admitted. But, he added, “from CNOC’s point of view, though, we certainly agree with the committee’s recommendations. In our submissions to the national consultation [on national security last fall] we expressed our view that the current framework and regime is working well to protect Canadians and does so in a manner that balances the privacy interests of users, the oversight requirements that are in place and the costs and obligations that are placed on ISPs.”
“We would hope to see that follow through as government policy.”
A spokesperson for the Canadian Wireless Telecommunications Association (CWTA), which represents most of the country’s wireless carriers, had no comment on the committee’s recommendations because government policy hasn’t changed.
“Our position was and remains that we care deeply about our customers’ privacy and we also care about the public safety issues all Canadians face,” said Sophie Paluck, CWTA’s director of communications. “We comply with lawful access requests, but we don’t hesitate to challenge them if they seem over-reaching … Because the regime isn’t changing our commitment to privacy and security is continuing.”
They were commenting on two recommendations from the committee:
- First, that because of the 2014 Supreme Court of Canada’s decision in R. v. Spencer, which said police need a warrant to get access to basic telco subscriber information, no changes to the lawful access regime or encrypted information be made under any new national security policy.
However, police were given faint hope with the recommendation that the committee “continue to study such rapidly evolving technological issues related to cyber security.”
- Second, that the Communications Security Establishment – the federal electronic spy agency—can only act on the requests of other national security agencies for surveillance of private communications and the gathering and retention of metadata only if those agencies get appropriate court authority.
These were a small part of the report, which mainly deal with oversight of intelligence agencies.
The issue of lawful access by police and intelligence agencies has been a controversy for years. Privacy advocates and telcos thought it had been put to rest by the Supreme Court’s 2014 decision, which says only in cases of emergencies do telcos have to hand over subscriber information. However, when the incoming Trudeau government promised to make changes to anti-terrorism legislation (Bill C-51) passed by the previous Conservative government it decided first to hold a national consultation last fall. That opened the door for police forces to formally urge the Liberals to make lawful access to subscriber information easier.
Police also took the opportunity to urge the Liberals to make it easier for law enforcement officials to somehow make it easier to get at encrypted communications of suspects.
Public Safety Minister Ralph Goodale has given no indication when a new national security framework will be announced. However, given that the Liberals dominate the national security committee some hope its recommendations this week are a sign the government has made a decision.
David Fraser, a privacy at the McInnes Cooper law firm in Halifax, said it might show “which way the wind is blowing.” But Fraser – who testified before the standing committee – also said he is “surprised” the majority didn’t explain in its report why it decided to recommend no changes to the lawful access regime.
Imran Ahmad, a partner at the Miller Thomson LLP law firm in Toronto who is on the advisory board of the Canadian Advanced Technologies Alliance's cyber security council, believes telecom providers will be pleased the committee didn’t add to what they already feel are onerous requirements to comply with court orders on lawful access.
He feels the current rule requiring a warrant for subscriber data except in emergency is good. But, he added, there needs to be more public discussion on whether police and intelligence agencies need more legal tools to deal with encrypted communications of suspects.
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