#CyberFLASH: Taxpayers would have to foot bill for new high-tech police powers, wireless industry says

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Canada’s top telecommunications industry group says any government move to force its members to install equipment to intercept digital traffic and store data to aid police investigations would have to be covered by taxpayers.

“We have always submitted that there should be a mechanism for the government to cover the costs or possibly law enforcement,” said Kurt Eby, director of regulatory affairs and government relations for the Canadian Wireless Telecommunications Association.

“Every time the government looks to add a layer such as this, there is going to be cost incurred.”

The federal government is holding public consultations on Canada’s Anti-Terrorism Act, which includes proposals for new investigative powers for police to gather digital evidence.

Police are lobbying for laws that would require telecommunications and internet service providers to retain user data like email, text and call records, and force those same companies to build intercept capabilities into their networks to enable investigators to tap digital communications.

Data Retention

There is currently no regulation to require telecommunications companies to store data for any length of time.

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#CyberFLASH: Your cellphone password could hold the key in legal battle over collecting evidence

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Here’s the scenario: Police believe there is evidence on your cellphone or computer that could assist them in a criminal investigation.

They ask that you provide your password or encryption key so they can search for clues.

Currently, there is no law compelling you to comply with that request.

But police in Canada, frustrated by evidence trails that lead to digital dead ends, are calling for a law that would make it a criminal offence to say no to a police officer carrying a judicial warrant.

It’s an idea designed to accomplish through a legal order what police are increasingly unable to accomplish technologically — getting inside digital devices containing what they believe is crucial evidence in criminal investigations.

“It’s a very radical proposal in Canadian law,” said Micheal Vonn, executive director of the B.C. Civil Liberties Association. “It changes the basic nature of how we go about achieving the ends of criminal investigation, by compelling the person who is under investigation to participate in the investigation.”

Many privacy advocates — and even some in law enforcement — call the idea an abuse of both privacy protections and the rights of Canadians against self-incrimination.

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#CyberFLASH: Canadians not terribly savvy about digital privacy, poll finds

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We all delete our internet browser history from time to time, and most of us have, at some point, removed something we’ve posted online.

But encryption? Virtual private networks? Not so much.

A poll conducted by CBC News and the Toronto Star this month found that hardly anyone in Canada said they use more advanced personal security tools.

This means that when it comes to digital security and privacy, Canadians really aren’t too savvy.

“There are so many unauthorized uses of people’s data and data breaches and hacking — it’s just grown exponentially,” said Ann Cavoukian, the former Ontario privacy commissioner and now the executive director of the Privacy and Big Data Institute at Ryerson University.

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#CyberFLASH: Canadians want judicial oversight of any new digital snooping powers for police

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Most Canadians feel strongly about their right to privacy online, but a new poll shows the vast majority are willing to grant police new powers to track suspects in the digital realm — so long as the courts oversee the cops.

Nearly half of the respondents to an Abacus Data survey of 2,500 Canadians agreed that citizens should have a right to complete digital privacy. But many appeared to change their mind when asked if an individual suspected of committing a serious crime should have the same right to keep their identity hidden from police.

The vast majority of Canadians … are willing to accept certain conditions … if it means that public safety is put first and their own families or personal safety is protected because police and intelligence agencies have these tools,” Abacus CEO David Coletto said.

“When a judge is involved, when a warrant is needed, we find broad support. It’s only when you take away that judicial oversight that you see a much more divided population.”

The survey, conducted on behalf of CBC News and the Toronto Star, asked Canadians about their views on three specific proposals to expand police powers, which are raised in a federal discussion paper that’s part of a review of Canada’s Anti-Terrorism Act.​

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#CyberFLASH: Ottawa should be careful on expanded police powers: Editorial

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Crime, like everything else, has been transformed by the digital age. Fraudsters, child pornographers and terrorists, among others, are becoming ever more expert in using digital technologies to commit their offences and cover their tracks.

Not surprisingly, this has created new challenges for law enforcement. Police chiefs across Canada claim investigators do not have the tools to keep up. Many say concerns about privacy have scuttled their attempts to convince politicians to provide them with the cyber-surveillance powers they need to do their job.

As Bob Paulson, commissioner of the Royal Canadian Mounted Police, puts it, “We’re losing our ability, if we haven’t lost it entirely, to bring the traditional investigative response to technologically facilitated crime because of the misunderstanding, in my view, of the privacy threat.”

This week, Paulson shared with reporters from the Star and CBC News case files he says demonstrate the obstacles his force faces, an attempt to help the public understand the need for new police powers the federal government is currently floating.

The cases are no doubt disturbing, tales of child abusers and wannabe terrorists evading justice. But while they clearly illustrate new and thorny police challenges, they do not establish that the requested powers are necessary or proportionate or to what extent they would endanger privacy or even weaken security.

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#CyberFLASH: RCMP want new powers to bypass digital roadblocks in terrorism, major crime cases

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Suspected child predators, drug traffickers and extremists allegedly planning attacks or to join ISIS are escaping the eyes of the law because of increasingly impenetrable encryption and other digital roadblocks, according to top secret RCMP files reviewed by a CBC News/Toronto Star investigation.

The Mounties provided access to the files in a bid to demonstrate how investigations of tech-savvy suspected criminals are increasingly “going dark” because crucial evidence is beyond their reach.

The rare look inside active investigations comes amidst a thorny debate and public consultation on Canada’s Anti-Terrorism Act (C-51), which includes proposals to significantly expand police powers.

Four ideas floated in the federal government’s green paper on national security would enhance investigative capabilities, including the power to compel suspects to unlock their encrypted computers and cellphones and a law to require telecommunication and internet service providers to install interception and data-retention equipment in their networks.

But privacy and civil liberties advocates are fiercely opposed to such measures and demand police provide more evidence to justify their request for new powers.

RCMP Chief Supt. Jeff Adam admits law enforcement hasn’t done a great job explaining the investigative challenges of the digital world to the public.

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#CyberFLASH: IP Addresses As Personal Information: The Canadian And EU Positions Contrasted

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The October 19, 2016 judgment of the European Court of Justice in the matter brought by Patrick Breyer against the Federal Republic of Germany (the “EU Decision”) raises the issue of whether an IP address is personal information under the EU Directive 95/46/EC and provides an interesting comparison with the Canadian perspective.

The EU Decision

As we have covered on this blog, in the EU Decision, Mr. Breyer claimed that the Federal Republic of Germany had no right to retain the IP address from the device he used to search for information on various government websites. He contended that his IP address is personal information that the website operator may keep only for the purpose of facilitating access to the site and not for general purposes such as safeguarding the security of the site or fending off cyber-attacks, such as denials of service.

The Court of Justice held that where third parties, such as internet service providers (“ISP”), have subscriber information that can be legally accessed by the website operator and used in conjunction with the IP address to identify the visitor, the IP address is personal information. The Court seemed to leave open the question of whether the IP address would constitute personal information if the holder of it could not reasonably or legally obtain the other information needed to identify the owner of the address. In so doing, it adopted a “relative” definition of personal information.

The Court also held that individual states could not pass legislation that forbids the use of an IP address for any purpose other than facilitating network access and billing.

The Canadian Perspective

The EU Decision provides an interesting contrast with the view of the Office of the Privacy Commissioner (“OPC”) in Canada. In a research paper published in May 2013, the OPC revealed that an IP address, combined with other publicly available information, even without any access to the ISP subscriber records, may permit identification of the owner and his or her web-browsing or other activities. Based on this finding, an IP address may in many circumstances be personal information regardless of whether the ISP subscriber records linking that address with an individual are legally accessible to the organization collecting the IP address. Thus, in Canada, IP addresses may be treated as personal information in more situations than in the EU.

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