The federal government tried to use an impending public-airwaves auction to alter the language of a surveillance accord with mobile-phone companies, acting on concerns that police lack the tools to lawfully intercept Internet data that passes through smartphones.
Records show that, following consultation with industry officials, the government pulled back on some of the proposed changes, which were not discussed publicly.
Police and mobile telecommunications companies now are calling for Parliament to update laws that would make explicit how authorities can lawfully access corporate repositories of telecommunications data.
The discussions between government officials and wireless operators concerned the Solicitor General's Enforcement Standards (SGES), an accord that, since 1995, has specified the technical surveillance capabilities that wireless telecommunications companies are to provide police.
Despite existing for nearly 20 years, the SGES has not been made public, but is circulated as a condition of licensing for companies buying space on government-controlled airwaves.
Telecommunications companies will this week file applications to bid on the newly available 700-megahertz spectrum, which is considered the most valuable patch of public airwaves ever offered up sale in Canada. In a consultation document circulated to industry last year, regulatory officials took the opportunity to talk about updating the SGES surveillance standards.
"Industry Canada is proposing changes to the lawful intercept condition of licence in order to bring the wording in line with current technologies," reads the document posted online last year. "….The condition of licence refers to standards for lawful interception, entitled the Solicitor General's Enforcement Standards for Lawful Interception of Telecommunications. …"
While never actually publishing the existing SGES standards, the Industry Canada consultation document went on to say the directives had been largely unchanged since 1995. It added that one "proposed change is to remove the text 'circuit-switched voice telephony' from the lawful intercept condition, as networks are no longer limited to circuit-switched technology."
Cutting through the jargon, observers say the proposed change would have opened up a vast new realm of surveillance on Internet data passing through Canadian mobile phones – not to mention a Pandora's box of potential privacy problems.
"The changes that are proposed by Industry Canada represent a significant expansion of what communications could be placed under surveillance," wrote Christopher Parsons, a PhD candidate at the University of Victoria and an expert in digital-privacy issues, in a blog posting early this year.
He wrote that the contemplated change would amount to an "entirely new means of communication that may be captured (e.g. e-mail, streaming music and video usage, TV-watching, gaming over wireless networks, etc.). … Thus, whereas carriers previously had a limited set of clear interception requirements, this simple change in language would substantially expand what they would be required to be able to intercept and preserve."
While the 1995 SGES accord specifies interception standards for voice, SMS texts, geolocation information and other "telephony metadata," it is silent on how authorities are to capture data moving through today's smartphone Internet browsers.
Police argue they need this capacity better spelled out to advance their lawful investigations, but mobile-carriers have resisted, pointing out that they don't control such data and that capturing it is, for them, a more difficult and expensive proposition than more standard surveillance.
Parliament has failed to pass successive "lawful-access" bills that were introduced over the past 10 years, meaning there are few explicit ground rules for how surveillance practises are to keep pace with evolving technology.
Industry-government accords such as the SGES have emerged instead, evolving behind closed doors as a conversation between government and industry officials. Privacy officials are now asking why the Canadian public and parliamentarians are not better apprised of the conversation.
One Parliamentarian says that federal MPs should play a greater role in scrutinizing such practises.
"The problem is that it is done outside of the public's eye and the public doesn't have a say in it," said Charmaine Borg, the NDP MP who serves as the digital-issues critic the Opposition.
She pointed out that privacy concerns prompted a public outcry last year when the government tried – and failed – to legislate new rules governing police access to telecom data. "When we were debating Bill C-30 in the House there was a huge mass of Canadians who did speak out ."
On Monday, an Industry Canada spokesperson who was asked to comment on the SGES pointed to a document that mentions how the government dialled back its proposed 2012 changes, following opposition from the Canadian Wireless Telecommunications Association, the industry's main lobby group.
"Most respondents who commented on this issue disagreed with the proposed changes. … The CWTA also noted that such changes would be more appropriately made through federal legislation," Industry Canada says on its Web site.
The document adds that the intent of the change "was not to expand the requirement" and that the government pared back the proposal to "serve the original intent while effectively maintaining the scope of the condition, similar to that of other services, namely the requirement to intercept voice communications."