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Canadian Government Buries “Lawful Access” Provisions in New Border Bill

The government yesterday introduced the Strong Border Act (Bill C-2), legislation that was promoted as establishing new border measure provisions presumably designed to address U.S. concerns regarding the border. Yet buried toward the end of the bill are lawful access provisions that have nothing to do with the border. Those provisions, which raise the prospect of warrantless access to information about Internet subscribers, establish new global production orders of subscriber information, and envision new levels of access to data held by electronic service providers, mark the latest attempt in a longstanding campaign by Canadian law enforcement for lawful access legislation. Stymied by the Supreme Court of Canada (which has ruled that there is a reasonable expectation of privacy in subscriber data) and by repeated failures to present a compelling evidentiary case for warrantless access, law enforcement has instead tried to frame lawful access as essential to address everything from organized crime to cyber-bullying to (now) border safety. Much like the government’s overreach last year on online harms, Bill C-2 overreaches by including measures on Internet subscriber data that have nothing to do with border safety or security but raise privacy and civil liberties concerns that are bound to spark opposition. This post provides the background on lawful access and an overview of some Bill C-2’s provisions with more details on key elements to come.

That bill stalled, but in February 2012, then-Public Safety Minister Vic Toews introduced Internet surveillance legislation that once again sparked widespread criticism from across the political spectrum. Toews infamously said to Francis Scarpaleggia, now the Speaker of the House but then a critic of the bill, that he “could stand with us or with the child pornographers.” The comment did not help his case and the overwhelming negative publicity pressured the government to quickly backtrack by placing it on hold. This is admittedly a lot of history, but the background is essential to understanding why a 140 page border bill that is the new government’s first substantive piece of legislation includes rules pertaining to Internet subscriber data and access to communications on provider systems.

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