The overwhelming majority of crimes, including the proposed offence of non-consensual distribution of intimate images and other serious offences such as murder and organized crime, now include telecommunications evidence. Unlike traditional forensic evidence found at the scene of a crime, digital evidence is often scattered across dozens of electronic devices and computer networks and may even be found on computers located in different cities almost anywhere the world. Moreover, the data often has a very short lifespan, making the need to obtain evidence in a timely manner crucial to the outcome of an investigation.
Evolving computer and communications technologies have made some crimes easier to commit and harder to investigate. In Canada, crime is currently being investigated using tools that do not always reflect the emergence of these new technologies. Our laws need to evolve to allow for effective and efficient responses to crime, while safeguarding Canadians’ privacy. All of the new authorities for access to data under these proposed changes would require a judge to authorize the access in advance. Under the proposed legislation there is no change to the current approach to legal thresholds and judicial authorities for investigative tools.
Changes addressed by this proposed legislation include the following:
Preservation of computer data
The proposed amendments would create a preservation demand and a preservation order. A preservation demand or order is a temporary, focused and targeted way to ensure that volatile computer data is not lost or deleted during the time it takes law enforcement agencies to obtain a judicial search warrant or production order to access the data. This would occur in cases where law enforcement officers have reasons to suspect that such data will assist in a specific investigation. The actual preserved computer data, including the content of any private communication, would NOT be disclosed with a preservation demand or order. Only after a search warrant or production order has been obtained from the courts would investigators be allowed to see the content of the computer data that has been preserved, consistent with current limitations on such access in the Criminal Code.
A preservation demand would be made directly by law enforcement officials to a third party, such as a telecommunications service provider. It requires the provider to preserve (i.e., not delete) specific computer data that would assist in an investigation. This data could be preserved for up to 21 days for a domestic investigation and up to 90 days for a foreign investigation. In the case of apreservation order, a judge would be allowed to require that computer data be preserved for up to 90 days. Unlike thepreservation demand, which can only be issued once by law enforcement, subsequent preservation orders can be issued by a court if there are reasonable grounds to suspect that criminal activity has occurred.
A preservation demand or order is NOT a general data retention requirement. Telecommunications service providers would NOT be required to collect and store data for a particular period of time for all subscribers, regardless of whether or not they are subject to an investigation.
Tracking warrants
The proposed amendments would increase the existing privacy protections for judicial tracking warrants when police are tracking a person, due to advances in technology and to the more invasive nature of tracking the whereabouts of a person using a thing usually carried or worn. This judicial warrant would explicitly provide for law enforcement remotely activating existing tracking devices that are found in certain types of technologies (cell phones and telematics devices in some cars, e.g. a GPS). Real-time tracking data could be obtained under this warrant, while historical tracking data could be obtained via a production order.
Tracking warrants for something typically held or carried personally (e.g., cell phone, laptop) would require that a higher judicial threshold be met in order to obtain such a warrant: it would be necessary to prove “reasonable grounds to believe” criminal activity has or will occur in order to obtain one. As is currently the case for tracking warrants, it would continue to be necessary to prove that there are “reasonable grounds to suspect” criminal activity is occurring in order to obtain a warrant for tracking vehicles or transactions.
Obtaining transmission data
The Criminal Code currently allows police to obtain telephone numbers dialled to and from a target’s telephone. This power would be updated to allow police to obtain data not only from the telephone as they can currently but also from the Internet, by creating a new concept called “transmission data.” Transmission data relates only to the type, date, time, origin, destination, or termination of a communication, but would NOT include the content of a private communication. In other words, it is focused on a specific set of data and does not include all metadata. As is now the case under the current law, access to the content of a telecommunication would continue to require a judicial search warrant or a production order for stored information, or an authorization to set up a wiretap under the Criminal Code for live collection.
Judicial authorizations for this type of data could only be obtained if there are “reasonable grounds to suspect” that the data will assist in the investigation of a crime, as is currently the case for telephone data. Such data could be obtained under two different types of judicial orders: a warrant (when the data is acquired in real-time), or a production order for historical data.
Obtaining a limited amount of transmission data to trace a specified communication
Criminals may route their Internet communications through a chain of many different service providers, and sometimes may even go through multiple jurisdictions, in order to hide and make it more difficult to determine the origin of the communications. Law enforcement officials would be able to trace a communication back to the suspect’s original service provider with this new measure.
The proposed legislation would allow a limited amount of “transmission data” to be obtained, with judicial authorization provided by a production order with a threshold of “reasonable grounds to suspect”. The transmission data would allow the identification of the service providers involved in the chain of the transmission of e-mails or other communications. This would help trace cybercrime (e.g., fraud, cyber-attacks, child pornography, and the proposed offence of non-consensual distribution of intimate images) domestically, as well as enhance Canada’s ability to cooperate with its treaty partners on international investigations.
Possession of a computer virus
The amendments to Criminal Code offences that are proposed would be added to the ones that currently exist to address the problems created by devices that are primarily used for committing computer-related offences.
The amendments would also reflect court decisions regarding similar offences that determined that computer programs – such as viruses – are to be considered “devices”. For consistency of language, similar amendments would be made to existing provisions related to the use of devices to steal telecommunication services.
Streamlining the application process for court orders
The proposed amendments to the Criminal Code would streamline the application process when specific court orders or warrants need to be issued in relation to the execution of a wiretap authorization. This essentially means that all of the needed court orders and warrants related to one investigation could be obtained from the same judge and be simultaneously and automatically sealed. The fact that the judge would be familiar with the investigation will facilitate judicial oversight. Currently, law enforcement officials often need to make applications to different judges for the various court orders required to execute a wiretap.
Modernizing the Mutual Legal Assistance in Criminal Matters Act and the Competition Act
The proposed modifications to the Criminal Code would also be reflected in the Mutual Legal Assistance in Criminal Matters Act (MLACMA) and the Competition Act to assist police and the Competition Bureau to investigate computer and computer-related crimes while ensuring that the rights of Canadians are protected. The proposed amendments to the Mutual Legal Assistance in Criminal Matters Act would widen the scope of assistance that Canada could provide to and receive from its treaty partners in fighting serious crimes, including cybercrime, in a modern telecommunications environment. Amendments to the Competition Act would also allow the Competition Bureau to better address significant technology-related challenges that affect its ability to obtain evidence, especially for the violations of deceptive marketing practices and false or misleading representation provisions.
Addressing Hate Crime
The term hate crime (also known as bias-motivated crimes) refers to criminal actions intended to harm or intimidate members of an “identifiable group” because of their race, ethnicity, sexual orientation, religion, or other minority group status. The proposed changes in this legislation would include adding national origin, sex, age, and mental and physical disability into the definition of an “identifiable group” contained in section 318 of the Criminal Code.
The Current Law
Production orders already exist in the Criminal Code. A production order is a court order that requires a third party who holds certain types of data or documents, i.e., historical data, to deliver this material to the police within a specified period of time. Such orders will only be issued when certain criteria and standards set out in the Criminal Code have been met.
Warrants also exist in the Criminal Code. These court orders are issued by a judge to permit police to engage in certain activities, such as searching private property (search warrants), tracking things (tracking warrants) or arresting persons (arrest warrant). As is the case for production orders, warrants will only be issued when certain criteria and standards set out in the Criminal Code have been met.
Wiretap authorizations already exist in Part VI of the Criminal Code. These authorizations to intercept private communications are court orders, issued by a judge, to permit the police to conduct a wiretap. A judge will only issue an authorization to intercept a private communication when certain criteria and standards set out in the Criminal Code have been met.
-30-
Department of Justice Canada
November 2013
