By David Canton
Legislation targets cybercrime
The federal government is proposing new legislation allowing law enforcement and national security agencies to monitor, intercept and seize modern telecommunications, including the Internet and e-mail.
As of August, 33 countries, including Canada, had signed the Convention on Cyber-Crime, an international treaty providing signatory states with legal tools to help in the investigation and prosecution of computer crime, including Internet-based crime and crime involving electronic evidence.
The focus of the convention was the criminalization of certain offences relating to computers, the adoption of procedural powers in order to investigate and prosecute cyber-crime and the promotion of international co-operation through mutual legal assistance and extradition.
As a result of Canada's involvement, Ottawa released a discussion paper entitled Lawful Access -- Consultation Document to address the issues set out in the treaty and some proposals for new legislation.
The discussion paper focuses on dealing with the challenges presented by modern telecommunications, public policy objectives and considerations that will result from new or amended legislation.
The proposal outlines three primary needs.
Bring the provisions of the law in line with new telecommunications technology.
Telecommunications providers must ensure there is sufficient technical capability in their facilities to permit lawful access.
Canadian statutory measures must conform to the requirements set out in the convention.
The paper outlines a number of proposals that will assist the government in resolving these needs.
New legislation must be developed to compel service providers to develop or deploy systems to provide interception capability that allows access to law enforcement and national security agencies.
Along with the development of new legislation, amendments to the Criminal Code would be necessary to deal with interception and search-and-seizure provisions.
Ottawa is also proposing further implementation of production orders, orders to obtain subscriber and/or service provider information, assistance orders and data preservation orders to give law enforcement agencies procedural powers to deal with new technologies.
Such orders are aimed at obtaining information from service providers about their customers and what those customers are doing. The implementation of these orders will require changes to the Criminal Code and Competition Act.
Other proposals clarify when the interception of e-mail is allowed. Amendments to existing computer offences are required with regard to creation, sale and possession of computer virus programs and illegal devices.
Canadians should review these proposals and comment on the changes to help ensure balance. Businesses that deal with communications and data such as Internet service providers, Web hosts and application service providers, may want to review the proposals to determine how they might affect their operations.
David Canton is a lawyer with the high-tech/ e-business practice group at Harrison Pensa, a London-based legal services partnership. This article contains general comments only and does not constitute legal advice. If you have legal questions, we recommend you contact a qualified lawyer. David Canton may be reached by calling 519-661-6776 or e-mail email@example.com.