Justify cyber-surveillance with report, says law student

It’s no secret that the federal government is considering making it easier for police to get permission to observe and intercept wireless and Internet communications. But Queen’s University law student Jason Young worries the feds may make it too easy.

He’s trying to get them to show empirical

evidence that expanded powers are really needed to catch cyber-criminals and keep up with the changing nature of communications.

But the Solicitor General hasn’t yet produced the last two years of a report that could shed crucial light on the surveillance and inception issue. Because the Canadian Criminal Code states the report must be prepared annually, Young says the Solicitor General is breaking the law — or at least the spirit of it.

Section 195 of the Criminal Code requires the Solicitor General to publish the report that lists the electronic surveillance activities of law enforcement agencies so that citizens can monitor police use of private communications interceptions, such as wiretaps.

This checks-and-balances measure gives Canadians crucial insight into the often secret work of police who sometimes violate people’s privacy in the course of their investigations.

According to the law, this annual electronic surveillance report is supposed to be published “”as soon as possible after the end of every year.””

But Young discovered that finding the 2000 publication proved very difficult. And the ones from 2001 and 2002 haven’t been published. “”It [the law] says, ‘as soon as possible at the end of each year,'”” says Young. “”It doesn’t say two years later. If Parliament had intended them to take two years to publish this stuff they would have written it into the legislation.””

The Solicitor General, the justice department and Industry Canada released the lawful access consultation paper — the paper that has discussed lowering the legal barriers to surveillance — last August. Young, who tracks the subject on his Web site — www.lexinformatica.org — took part in one of several public roundtables in 2001 discussing the paper’s proposals and has closely followed its progress. He said he and others were disturbed that the government didn’t provide any hard data as to why police need new powers of surveillance. It also didn’t demonstrate why existing surveillance techniques are inadequate.

The details are important to civil justice groups because the lawful access amendments would make it much easier for law enforcement to turn the investigative tools of electronic surveillance on the general public, with very little independent oversight from the courts.

For example, in order to fight cyber-crime, law enforcement agencies want to lower the legal barriers to obtaining the Internet equivalent of pen registers for telephone records.

Telephone pen registers identify whom a person called and when, but the Internet equivalent gives a lot more information about a person, such as the subject of an e-mail and what Web sites a person visits.

Right now, the courts authorize electronic surveillance only when police can’t get the information they need by any other means and when they demonstrate to a judge there’s a reasonable and probable cause to believe that an offence has been or will be committed. In other words, electronic surveillance is a last resort and is usually used against sophisticated criminal organizations, like biker gangs and the Mob.

But the proliferation and increasing complexity of digital information and communications technology means that police are finding it more difficult to obtain the information they need to successfully prosecute crimes in cyberspace.

“”The response has been to propose lowering the standards for prior judicial authorization of electronic surveillance,”” says Young. “”In reality, the solution to the difficulties that law enforcement faces is more complex and more nuanced than simply attacking the constitutional protections built into our Criminal Code.””

Instead of easier access to surveillance, police need more training and more funding to deal with technology-intensive investigations and to purchase specialized software for investigations, he argues. They also need greater inter-jurisdictional co-operation and increased co-operation from victims of cyber-crimes, Young says. When he tried to obtain the Solicitor General’s annual electronic surveillance report, which Young describes as the “”most significant piece of evidence in this puzzle,”” he found only the 1999 report.

He then filed an access to information request for the reports from 2000 to 2002. The Web address for the 2000 report was incorrect and the reports from 2001 and 2002 hadn’t yet been published.

Dan Brien, press secretary for Solicitor General Wayne Easter, says the 2001 report will be tabled and available sometime this spring. Brien says it takes a long time to compile the electronic surveillance information because it’s the previous year’s information. The 2000 report, for example, was tabled last year.

“”It’s not just RCMP information, but it has to be collected from police forces across the country,”” Brien says.

He adds that police investigations can take time and stretch over more than one year, so the information that police forces provide often isn’t complete for a long time.

“”A lot of these investigations aren’t completed yet and the requirement to report is such that we get this information from police forces across the country in a way that makes it so that we can’t just write information on the fiscal year that ended March 31, 2003. It’s not an on-and-off kind of thing,”” Brien says.

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Jim Love, Chief Content Officer, IT World Canada

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