Thursday, June 25, 2009

Investigative Powers for the 21st Century Act

It appears the present government in Canada is very interested in what you do with your computer. I mean, really, really interested in what your computer is doing. The reason I say that is two bills that are currently before the House of Commons. The first is Bill C-46, also known as the Investigative
Powers for the 21st Century Act
and Bill C-47, also known as Technical Assistance for Law Enforcement in the 21st Century
. Funny how both those titles are refered to as the 'short' titles to the bills.

I will admit I haven't read the second one, but if I can give the explanation for it as found on the Public Safety website, it is a bill:

it will address the challenges posed by modern technologies that did not exist when the legal framework for interception was designed nearly 40 years ago. Police forces and CSIS will continue to require warrants for interception. This legislation will simply ensure that when warrants are issued, a technical solution is available so that police forces and CSIS can actually intercept communications.

In other words, it instructs ISP's to have available the means to intercept and hand over to who ever shows up with a warrent, the material requested by the warrent. As the bill itself states:
The purpose of this Act is to ensure that telecommunications service providers have the capability to enable national security and law enforcement agencies to exercise their authority to intercept communications and to require telecommunications service providers to provide subscriber and other information, without unreasonably impairing the privacy of individuals, the provision of telecommunications services to Canadians or the competitiveness of the Canadian telecommunications industry.

I would imagine that also included in this demand is that ISP's better have the ability and server farms out there to store all that data because you just never know when somebody will show up with a warrent.

Let me say, that's nothing. The bill I've been reading and really questioning is the first one, Bill C-46, this act empowers the law enforcement agencies the right to take whatever they want from you without necessarily having a warrent. I'll talk about that in a few paragraphs.

Bill C-46 considers a lot of behavior that is to be illegal in Canada, all having to do with telecommunications and the transmittion of voice and date. In particular the latter. It is an attempt to modernize the work of fighting crime and giving the law enforcement agencies the powers to search modern telecommunications material and also declare what behavior is illegal.

Let's mention just a few: phone phreaking
Everyone who, without lawful excuse,makes, possesses, sells, offers for sale, imports, obtains for use, distributes or makes available a device that is designed or adapted primarily to use a telecommunication facility or obtain a telecommunication service without payment of a lawful charge, under circumstances that give rise to a reasonable inference that the device has been used or is or was intended to be used for that purpose, is(a) guilty of an indictable offence and liable to imprisonment for a term of not more than two years; or
(b) guilty of an offence punishable on

So if the police ever stop you, better get rid of the Cap'n Crunch bos'n whistle, otherwise you are screwed.

Computer Virus is illegal:
(1.1) Everyone commits mischief who wilfully
(a) destroys or alters computer data;(b) renders computer data meaningless, useless
or ineffective;(c) obstructs, interrupts or interferes with the
lawful use of computer data; or(d) obstructs, interrupts or interferes with a
person in the lawful use of computer data or denies access to computer data to a personwho is entitled to access to it.

So better get rid of your copy of the Virus Creation Laboratory software otherwise you could be in trouble as well. Not that it's all that effect anyways.

AS well, phishing, uploading trojans, stealing sensitive data off computers or turning computers into spam generating zombies is also now illegal in Canada.

So what's the problem with all that, these are all annoyances that should be dealt with by the strength of the law. As well, it does put strong sentences on people who use computers for child pornography or enticing children and producing and disseminating hate material. All would agree these are crimes which should be dealt with and if these scumbags end up with a few more years in jail then previously, a good thing.

There are a few problems, the first is Form 5.001
FORM 5.001
(Subsection 487.012(1))
Province of ..........
(territorial division)
To (name of person), of .........., (office or occupation):
Because I have reasonable grounds to suspect that the computer data specified below is in your possession or control and that that computer data will assist in the investigation of an offence that has been or will be committed under (specify the provision of the Criminal Code or other Act of Parliament),
will assist in the investigation of an offence that has been committed under (specify the provision of the law of the foreign state) that is being conducted by a person or authority, (name of person or authority), with responsibility in (specify the name of the foreign state) for the investigation of such offences, you are required to preserve (specify the computer data) that is in your possession or control when you receive this demand until (insert date) unless, before that date, this demand is revoked or a document that contains that data is obtained under a warrant or an order.
This demand is subject to the following
If you contravene this demand without lawful excuse, you may be subject to a fine.
You are required to destroy the computer data that would not be retained in the ordinary course of business, and any document that is prepared for the purpose of preserving the computer data,in accordance with section 487.0194 of the Criminal Code. If you contravene that provision without lawful excuse, you may be subject to a fine, to imprisonment or to both.
(Signature of peace officer or public officer)

In other words, if the nice Police Officer shows up to your house with this piece of paper, it's 'hand it over'. Notice, this is not a search warrent, it's permission to seize your property. Now the bill specifies that this is good for only 21 days after which they return the property. Now, if you think that when you get your computer back, it might be a good idea to wipe clean the hard drive, reformat it, and then re-install the operating system, the bill has another form, 5.002 which gives law enforcement agencies the right to preserve what you have on that hard drive:
Before making the order, the justice or judge must be satisfied by information on oath in Form 5.002
(a) that there are reasonable grounds to suspect that an offence has been or will be committed under this or any other Act of Parliament or has been committed under a law of a foreign state, that the computer data is in the person’s possession or control and that it will assist in the investigation of the offence; and
(b) that a peace officer or public officer intends to apply or has applied for a warrant or an order in connection with the investigation to obtain a document that contains the computer data.

What's the issue? If there are bad guys, then the government should have as much in the way of power to go after them, after all, we live in a scary world. Let's again consider it, the law says that if you are annoying, you are guilty:
Everyone commits an offence who, with intent to alarm or annoy a person, makes an indecent communication to that person or to any other person by a means of telecommunication

I can be arrested if I'm annoying. Think about it, most of us spend a great deal of time annoying somebody. Just because I tweet something that someone finds annoying, does that mean I should expect to see a police officer with form 5.001?

What I find very disturbing, and Drew Wilson brings this up in his blog Zero Paid, that this act gives foreign governments the right to go after Canadian citizens. The section of the Bill that deals with this is 487.012:
in the case of an offence committed under a law of a foreign state, an investigation is being conducted by a person or authority with responsibility in that state for the investigation of such offences; and
(c) the computer data is in the person’s possession or control and will assist in the
investigation of the offence.

This is troubling, if I should break the law of another nation, and if the foreign government finds out where I live, I can expect to see Form 5.001. Now there are a lot of reasons, to go after me, some very good. However, what if I'm a dissident living in Canada and I publish articles critical of that foreign government, or I send information to those who are involved in resistance groups. What if I print something or criticize a government and state that little girls should receive the same education as little boys. In some nations that is considered wrong. What protection do I have? According to that section, almost none. Now let's say the hard drive that contains my critical articles also has the names and email addresses of other dissidents- what happens to that information, is it handed over to that unfriendly government? Let's say the country I am critical about is involved in sensitive trade negotiations with my government, what happens if I'm on the bargaining table?

Drew tends, in his blog, to consider DRM issues, but it could be a lot worse.

I suppose the question is, would a government throw any of its citizens, or people here, under the bus? That's the question.

Perhaps it is time to consider True Crypt, but then again, the Bill gives the law enforcement officials the right to get the password out of you. A solution, John C. Dvorak suggested encrypt the drive twice and between the encryption just have some regular documents and stuff, to satisfy them.

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