Myths and Facts about Protecting Children from Internet Predators Act

Myth: Lawful Access legislation infringes on the privacy of Canadians.

Fact: The privacy of Canadians will continue to be protected and existing privacy safeguards will be maintained or strengthened. Current practices of accessing the actual content of communications with a legal authorization will not change. 

• The Government of Canada is strongly committed to maintaining the rule of law through all of its legislation.  None of the lawful access tools (e.g., production orders, preservation orders, interception orders, and search warrants) permit information to be obtained in the absence of lawful authority.  A person's reasonable expectation of privacy guides how federal legislation is updated.
• Lawful Access legislation will put into place a number of safeguards that currently do not exist regarding access to basic subscriber information.  Further, the legal threshold for judicial authorization will be raised in the Criminal Code in relation to tracking of persons to ensure a proper balance between investigative needs in the 21st century and privacy protection. 
• In addition, privacy safeguards will be enhanced with respect to interceptions conducted in exceptional circumstances. Police may at times be required to intercept private communications without a warrant in exceptional circumstances, for example in the case of a kidnapping or bomb threat, which they are currently authorized to do under section 184.4 of the Criminal Code.  Proposed amendments to the Criminal Code will put this provision on the same footing as other wiretap authorities by requiring annual reporting and notification to the individual whose private communications have been intercepted.

Myth: Having access to basic subscriber information means that authorities can monitor personal communications and activities.

Fact: Giving authorities access to basic subscriber information does not give them either the technical ability or the legal authority to monitor personal communications and activities. Basic subscriber information would be limited to a customer's name, address, telephone number, email address, Internet Protocol (IP) address, and the name of the telecommunications service provider. It absolutely does not include the content of emails, phones calls or online activities.

• Access to the actual content of communications, or tracking of an individual or a telecommunications device, will continue to require judicial authorization, except in exigent or exceptional circumstances, as per current legislation governing interception.
• Having access to this basic information does not physically or legally allow police, CSIS and the Competition Bureau to have access to information pertaining to the content of emails, websites an individual visited, phone calls either made or received, or tracking an individual's activities.
• Providing basic subscriber information to authorities refers to just that: the provision of information limited to a customer's name, address, telephone number, email address, Internet Protocol address at a given date and time, and the name of the telecommunications service provider.
• Basic subscriber information only reveals identifying information about a person or their equipment or service provider, and only at a specific point in time.

Myth: This legislation does not benefit average Canadians and only gives authorities more power.

Fact:  As a result of technological innovations, criminals and terrorists have found ways to hide their illegal activities. This proposed legislation will benefit average Canadians as it will better equip authorities to investigate crimes and threats to national security.

• While this Bill does provide police with new or improved investigative tools, the provisions granting authority were fully reviewed during its development to ensure that police needs were balanced with protecting the privacy of Canadians. 
• Investigative powers that are tailored for obtaining evidence in the 21st century's telecommunications environment will permit investigators, prosecutors and judges to realize new efficiencies that benefit the administration of the criminal justice system by being less cumbersome, and more precise. The review also led to amendments to the Criminal Code that enhanced privacy protections for certain investigative powers, such as tracking warrants.
• This legislation seeks to update existing powers in the Criminal Code and related statutesto ensure that our laws reflect the investigative technologies required to combat crime in the 21st century, balanced with the appropriate accountability and safeguard mechanisms. 
• Production orders related to transmission data and tracing of specified communications, information which was previously obtained using general production orders or general warrants, will be reclassified under new, more specific categories.  These orders will adopt the judicial authorization threshold that is consistent with existing specific production order powers.
• This legislation will also rectify a gap in powers related to the transmission data recorder (a device that records the basic transmission information about a communication, rather than its content), by allowing police to use such a device in exceptional circumstances without a warrant.  This simply brings transmission data recorder powers into line with other similar techniques with respect to the ability to use them without a warrant in exceptional circumstances.
• In addition, the new statute created by the Bill, the Investigating and Preventing Criminal Electronic Communications Act (IPCECA), will require that telecommunications service providers have intercept capable networks so that authorities can intercept communications when they are legally authorized to do so.  No new interception or tracking ("surveillance") powers are included in IPCECA, and the interception and tracking of individuals continues to require lawful authorization.

Myth: Basic subscriber information is way beyond "phone book information".

Fact: The basic subscriber information described in the proposed legislation is the modern day equivalent of information that is accessed from the phone book. These identifiers are often searchable online and shared between individuals in online communications.

• Name, address, and telephone number are available on publicly available websites or in the actual phone book.
• People provide their names, addresses and home phone and cell phone numbers on a daily basis to apply for credit cards, enter into contests, and to socially connect.
• Email addresses are designed to be shared, and are given out by Canadians so that they may connect with other people.
• Every time someone uses the internet, their IP address is known to the website that they are accessing, and can be visible in chat rooms or other public spaces online.
• In general, these identifiers are voluntarily and repeatedly released by individuals for a large number of purposes, which can be interpreted as a high expectation that this information will be publicly known.
• Information that would provide details of a person's life, for example a record of who a communication was sent by and to, or the date, time and location of a call made or received, are outside the scope of requests for basic subscriber information, and would require a transmission data recorder warrant, a search warrant or production order to obtain.

Myth: Police and telecommunications service providers will now be required to maintain databases with information collected on Canadians.

Fact: This proposed legislation will not require either police or telecommunications service providers to create databases with information collected on Canadians.

• Lawful Access legislation does not compel telecommunications service providers to keep information about all customers at all times.  The Bill will allow police to compel an entity (for example, a telecommunications service provider) to preserve historical computer data for a short time to give police time to get a warrant or a production order to obtain it.  Authorities can only request the preservation of data already in the control of the third party subject to a preservation demand or order.
• This data must be related to specific individual(s) where authorities believe that such data will assist in a specific investigation.
• The police will be able to present an entity with a preservation demand, which is a temporary order that does not give access to the actual computer data.  Such a demand is non-renewable.  If the police do not return with a judicially authorized preservation order, production order, or warrant within 21 days (domestic investigations) or 90 days (international investigations), the entity is required to destroy the computer data that was preserved as soon as feasible unless retaining the information is part of the company's normal business practice.
• A preservation order is a temporary order issued by a judge, requesting that a third party preserve computer data for the purposes of an investigation.  Police must demonstrate to the judge that they intend to apply or have applied for a warrant or order to obtain the computer data.  As is the case for preservation demands, the police will still not obtain the computer data at that time.  A preservation order expires after 90 days.  If the police do not return with a production order or warrant within 90 days, the third party is required to destroy the computer data that was preserved as soon as feasible unless retaining the information is part of the company's normal business practice.
• Ultimately, in order to receive the contents of what is being preserved under a preservation order or demand, a judicially authorized production order or a warrant is required.
• Further, the basic subscriber information provisions in the new statute created by the Bill, the Investigating and Preventing Criminal Electronic Communications Act (IPCECA), do not require that telecommunications service providers create databases of their customer information.  Under the new Act, telecommunications service providers will only be required to provide information already in their possession. 

Myth: "Warrantless access" to customer information will give police and government unregulated access to our personal information.

Fact: Federal legislation already allows telecommunications service providers to voluntarily release basic subscriber information to authorities without a warrant. This proposed legislation will actually go one step further by adding a number of checks and balances which do not exist today, and clearly lists which basic subscriber identifiers authorities can access.

• Federal legislation already allows telecommunications service providers to release, without a warrant, basic subscriber information to police, the Canadian Security Intelligence Service and the Competition Bureau.  However, they are not required to do so.  As a result, there is no consistency or predictability when authorities request this basic information and investigations are often delayed or hampered as a result. 
• The new statute created by the Bill, the Investigating and Preventing Criminal Electronic Communications Act (IPCECA), will expressly reconfirm the role of oversight bodies – such as the Privacy Commissioner and the Security Intelligence Review Committee – to audit the basic subscriber information controls of an agency within its jurisdiction at any time.  Additionally, IPCECA will put into place a number of checks and balances concerning the collection and use of this information which do not exist today, specifically:
  • Limiting the number of designated officials who can request basic subscriber information to a maximum of five people per organization, or 5% of the organization's workforce (whichever is greater); 
  • Putting procedures in place for mandatory record keeping by authorities of all requests for basic subscriber information;
  • Indicating that basic subscriber information may only be requested in order to perform a duty or function of the agency in which a designated official works;
  • Mandating regular internal audits be conducted by the heads of respective agencies, and requiring that reports of all the findings of these audits be provided to the responsible Minister and to the responsible external review bodies; and,
  • Requiring that telecommunications service providers comply with the confidentiality and security measures included in the regulations.

Myth: This legislation will be expensive for service providers, who will pass the cost along to consumers.

Fact: Lawful Access legislation contains a number of mechanisms that would minimize the cost to service providers when fulfilling their legislative obligations.

• The intercept capability requirements within the proposed new legislation are forward-looking, and equipment that is already in place when the legislation comes into force is only required to maintain existing capability.  The legislation was designed this way as it was recognized that it is more cost-effective to incorporate intercept capability at the design stage than it is to include it in equipment already in use.  In addition, the proposed legislation:
  • Grants an initial transition period of 18 months for all telecommunications service providers, during which time the operational requirements relating to any newly installed equipment or software would be suspended.  This would allow telecommunications service providers time to plan, test and integrate intercept capability into new equipment and services. Provides reasonable compensation to telecommunications service providers in instances where the RCMP or CSIS require them to implement intercept capability that goes over and above the legislative requirements.  This could include requiring any telecommunications service provider to build extra capacity for simultaneous interceptions or to meet intercept capability requirements under the legislation within the 18 month transition period through an order by the Minister of Public Safety.
  • Allows telecommunications service providers to select the most cost efficient solution for their particular networks, based on their business practices, rather than imposing the use of specific equipment.
  • Provides compensation to telecommunications service providers for the specialized telecommunications support they provide the police and CSIS in performing interceptions, as well as for providing the police, CSIS and the Competition Bureau with basic subscriber information.
  • Includes provisions that provide flexibility to telecommunications service providers if they are facing problems that limit their ability to comply with the requirements of the proposed legislation, such as requesting a suspension of their operational obligations for a period of time, developing an alternate compliance plan with authorities, and/or being considered for an exemption order.