| Lawful entry
The novelty in these initiatives tends to arise in the reduced authorization requirements and oversight. This includes initiatives to weaken due process requirements; as occurred in Canada where the first anti-terrorism bill proposed that law enforcement agencies will no longer be required to justify the need for the wiretap. That is, in existing law, the judge authorizing the interception would need to be satisfied that “other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.”
In the law, an exception is established for all offences that fall under the broad category of “terrorist activity.” Other parts of the law allow for interception authorization by the minister of defence instead of requiring judicial authorization.
There is also a general increase in the breadth of application of these powers, by incorporating and including new technologies and communications infrastructures, permitting additional government agencies to use these powers, and formalize roving powers...
Moreover, the reporting regime in the United States of America was weakened with amendments to the foreign intelligence surveillance act so that fewer warrants would have to be requested and reported because the expiration time period was increased, and “generic” orders could be requested allowing one warrant to be served on multiple service providers.
Attempts to differentiate the authorization and oversight requirements based on the communications-technology also occurred. The Australian government proposed in its telecommunications interception legislation amendment bill 2002 to grant powers to intercept and read email, short messaging service and voice mail messages without a warrant because these communications were considered access to “stored” data rather than “intercepted” in real-time.
This proposed act was rejected in the senate in 2002 however, the government claims that it “remains of the view that the approach adopted in the bill with respect to stored information is appropriate. However, to avoid holding up this important package of legislation, the government has agreed to remove these provisions from the bill and to deal with the issue at a later date.”
In 2000, the United Kingdom proposed a policy to require the retention of communications traffic data for up to 7 years by a central government authority. While the proposal faced significant resistance in the public discourse at that time, in December 2001 a similar policy was introduced and passed under the UK’s anti-terrorism law in response to the events of September 2001. The new European Union directive on data protection in electronic services also supports the creation of such data retention laws within the European community and is consistent with international pressure to weaken data protection.
In October 2001, President Bush sent a letter to the president of the European Commission requesting that the European Union “consider data protection issues in the context of law enforcement and counterterrorism imperatives,” and as a result to “revise draft privacy directives that call for mandatory destruction to permit the retention of critical data for a reasonable period.”
Building from previously articulated concerns that “data protection procedures in the sharing of law enforcement information must be formulated in ways that do not undercut international cooperation,” the US department of justice submitted a number of recommendations to the European Commission working group on cyber-crime, including the recommendation that any data protection regime should strike an appropriate balance between the protection of personal privacy, the legitimate needs of service providers to secure their network and prevent fraud, and the promotion of public safety.