‘Proceed cautiously’ in expanding lawful access: privacy commissioners

OTTAWA — The federal government hasn’t made its case for why law enforcement and intelligence agencies need stronger powers to intercept, decrypt and share citizens’ information, the country’s privacy watchdogs said Tuesday, as they shared their submission to the federal government’s national security framework review. “The government should only propose and Parliament should only approve new state powers if they are demonstrated to be necessary and proportionate — not merely convenient,” Daniel Therrien, federal privacy commissioner, said during a morning press conference. Therrien was joined in speaking to reporters by Brian Beamish, information and privacy commissioner for Ontario, and Jean Chartier, president of Quebec’s access to information commission. The government needs to learn from past mistakes with key takeaways being that “the legal framework should include clearer safeguards to protect rights and prevents abuse, that national security agencies must be subject to effective and comprehensive review, and that new state powers must be justified on the basis of evidence,” said the submission signed by Therrien and his 12 provincial and territorial counterparts. In a background document — known as a “green paper” — prepared for the consultation, Public Safety Canada highlighted areas of concern for investigators, including “slow and inconsistent access to basic subscriber information,” advanced encryption techniques, and “the lack of a general requirement that domestic telecommunications networks maintain the technical ability to intercept messages.” But the government should “proceed cautiously” before attempting new legislation that would give police and intelligence agencies broader powers to move within those areas, the privacy watchdogs said. For example, since 1990s, the Solicitor General Enforcement Standards have included as a condition of licence for telecom carriers a requirement to “build in surveillance capability, retain communications metadata and provide decrypted content to government upon request,” the submission said. Therrien said that while there is no law on the books, there are those existing rules, and if the government wants a statute, it needs to say what it would be for. “What is it, in substance, in these licencing requirements that is deficient and that needs to be enhanced? I don’t know that. The green paper doesn’t explain that and it’s one of the things we would like the government to explain further,” Therrien said. “What is it in substance in these licencing requirements that need to be enhanced to give the police and national security agencies the tools they need? The privacy watchdogs are also wary about any new laws that would compel the decoding of encrypted devices. Earlier this year, the U.S. government made headlines when it took Apple Inc. to court to force it to come up with a workaround to access a phone of dead suspect in an alleged terrorist shooting in San Bernadino, Calif. In August, the Canadian Association of Chiefs of Police passed a resolution calling for a law that would force people to hand over their device passwords if seized under a search warrant. Any plans to weaken or eliminate a judge’s role in supervising police access to communications information “poses a really significant risk to the privacy of all Canadians,” Beamish said. He also mentioned concerns around “stingray” technology, or IMSI catchers — devices which mimic cell phone towers and collects information from phones in a given area. “As a result, the need for transparency and accountability can’t be overstated,” Beamish said. Looking at individual devices on a case-by-case basis is preferable to wide-ranging legislation, the commissioners said, though Therrien acknowledged that in itself is a difficult task. “So even to propose that raises issues as to technological feasibility but I am advised that it may be possible in some circumstances to get access to individual devices without creating a kind of systemic risk that everyone fears,” Therrien said. “And there is more of a risk in creating risk for the population at large if you try to create systemic back doors to systems as opposed to looking at the situations on a case-by-case basis.” The public consultation will wrap up Dec. 15. — With reporting by Charelle Evelyn at cevelyn@thewirereport.ca and editing by Anja Karadeglija at akarad@thewirereport.ca

‘Proceed cautiously’ in expanding lawful access: privacy commissioners

Broadcast | December 6, 2016

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‘Proceed cautiously’ in expanding lawful access: privacy commissioners

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