42 N O V E M B E R / D E C E M B E R 2 0 1 6 w w w . C A N A D I A N L a w y e r m a g . c o m
he fact that it is so easy
to hide our phone com-
munications from third
parties has angered a lot of
people, especially the authorities.
Called "going dark," anyone with
a smartphone can download any
number of applications that
use end-to-end encryption,
making it all but impossible
for text messages, photos, documents,
etc. to be monitored or intercepted by
anyone, including Internet providers
and the police. Many popular apps
use this kind of encryption, including
WhatsApp, Cyber Dust and a Canadian
chat application called Kik. Facebook
recently announced its "Secret Messa-
ges" encryption feature, available to 900
million messenger users.
Law enforcement officials and,
increasingly, the public, believe that
end-to-end encryption poses a real dan-
ger to us, our children and to national
security — so much so, that the TV pro-
gramme 48 Hours began its new season
in September with a much-hyped show
called "Killer App." It was all about Kik.
It's not only "going dark" that causes
problems for authorities trying to locate
and prosecute cybercriminals. There is
a very long list of hurdles facing law
enforcement when it comes to cyber-
crime — and all crimes committed with
a cyber element to them. These include
difficulties in determining who owns
electronically stored information; a lack
of expertise needed to analyze the data
(if you can access it); ineffective penal-
ties in cases where defendants refuse to
comply with orders to disclose data; and
an inability to compel local companies to
produce data stored in other countries.
Canadian authorities have made it
clear they want a change in our laws
related to investigating digital-related
crimes. They want more access to the
public's communications — and they
want faster access. On Aug. 16, the
Canadian Association of Police Chiefs
passed a resolution calling for a new
law to be enacted that would enable the
police to unlock digital evidence, for-
cing people to reveal their passwords.
One month later, the federal govern-
ment introduced a Green Paper on
national security called "Our Security,
Our Rights: National Security Green
L E G A L R E P O RT \ C R I M I N A L L AW
MATTHEW
BILLINGTON
Fighting cybercrime
Better enforcement, and not new laws, may be the best
way to deal with cybercriminals
By Ava Chisling
THE ATTENTION TO
THESE [CYBERBULLYING]
CASES MADE THE
PUBLIC AND THE
POLICE SAY, 'OH, WE
NEED NEW LAWS,' WHEN,
IN FACT, WE ALREADY
HAVE LAWS THAT COULD
HAVE BEEN PUT TO
GOOD USE.
DAVID FRASER, McInnes Cooper
T
