Question Period Note: Lawful Access

• As crime becomes more complex and borderless due to changes in technologies, it is increasingly difficult for law enforcement agencies to protect Canadians. Part 14 and 15 of Bill C-2 are meant to address these long standing issues.

• By introducing Bill C-2, the Strong Borders Act, our government is combatting crime by giving law enforcement the tools they need to pursue criminal investigations while maintaining the proper safeguards and upholding Canadians’ privacy and Charter rights.

• Bill C-2 proposes a clear judicial authorization path to provide investigators the basic information they need to confirm or eliminate a suspect, such as a name and address.

• The Bill will also allow law enforcement to request information from communication service providers who are located outside of Canada, and ensure that electronic service providers have the capabilities to support criminal and intelligence investigations.

• These efforts are vital for Canada to keep pace with the expanding use of technology commonly used by individuals looking to harm Canadians, such as child sexual exploitation and sextortion online or violent extremism content that exposes, recruits and encourages action.

Part 14 – Timely Access to Data and Information
• Proposed changes will assist law enforcement to make requests to service providers based on “reasonable suspicion”, to rule out or in suspects and initiate proper investigations.
• The Bill would amend the threshold for law enforcement to obtain basic subscriber information from reasonable grounds to believe an offence has or will be committed and that this information will afford evidence of the offence to reasonable grounds to suspect to an offence will or has been committed and that the subscriber information will assist in the investigation. To receive basic subscriber information law enforcement will require judicial authorization.
• The Bill will also allow law enforcement the capacity to retrieve information without a warrant when there is an immediate danger. This addition will make clear in the Criminal Code that the principle of exigent circumstances can also apply to seizing subscriber information and/or data when an individual is in immediate danger such as the live-streaming of a child being sexually abused.
• The Bill will allow cooperation with international law enforcement to request information from communication service providers who are located outside of Canada.
Part 15 - Supporting Authorized Access to Information Act
• Lawful access refers to the process by which law enforcement agencies and CSIS use legally authorized powers to obtain information and assistance from electronic service providers (ESPs).
• These authorizations are found in the Criminal Code and the CSIS Act and are relied on by all law enforcement agencies in Canada, including but not limited to, at the federal level, the RCMP, the Canada Border Services Agency, Canada Revenue Agency, and the Competition Bureau.
• Authorizations include requirements to produce stored data (such as content of emails), transmission data (typically referred to as metadata, such as location), or to intercept live private communications. Most authorizations do not compel the assistance of ESPs absent an explicit assistance order. Furthermore, authorizations do not create a requirement for an ESP to maintain a system capable of collecting the information or retaining it for a certain period of time.
• The proposed Supporting Authorized Access to Information Act (SAAIA) requires select ESPs to have the capability to enable law enforcement agencies and CSIS to effectively access information and data they are legally authorised to access, to conduct criminal and intelligence investigations.
• Instead of requiring whole sectors, including small enterprises, to have capabilities in place, the Government will be able to take a more targeted approach and require capabilities development, as needed, through ministerial orders.
• SAAIA will not create new authorities, such as surveillance powers, for law enforcement and CSIS. But rather, it ensures that ESPs are able to give effect to legal requests from law enforcement and CSIS.
• SAAIA includes safeguards to prevent any type of requirement that would result in the creation of systemic vulnerabilities in electronic protections, such as backdoors in encryption technology.
• SAAIA expressly factors in previous consultations on Lawful Access (2016 led by then Minister Goodale), and lessons learned from Five Eyes and likeminded countries that have legislated Lawful Access and established centralized entities in the last 10 years.
 

If Pressed
Facilitating law enforcement access to subscriber information and transborder access to data
Q1 – What problem is the Government trying to address with Part 14 of Bill C-2?
• Bill C-2 will update existing tools and create new ones to support timely and lawful access to basic information and data that are necessary in the early stages of criminal investigations.
• We know that, at preliminary stages in investigations, law enforcement uses subscriber information, like a name or address to identify or exclude suspects.
• Unfortunately, currently, law enforcement often does not know which service provider holds the customer account with which the subscriber information is associated.
• Due to this lack of access to information, law enforcement is not able to establish that the person/provider, to be served by a production order, is in possession or control of the information sought, as is required.
Q2 – How does this impact CSIS?
• The amendments do not change the information CSIS can collect, and they do not change CSIS’ mandate. They would simply achieve alignment with some of the proposed amendments to the Criminal Code.
• The amendments to the CSIS Act would provide lawful authority to make an Information Demand to obtain limited information that does not currently require judicial authorization.
• CSIS can currently collect this type of information without a warrant, but service providers are not required to provide it.
• CSIS can also ask service providers to confirm the date range and the province in which the service was provided.
• Furthermore, these amendments are carefully designed to balance privacy interests. CSIS continues to require an order or warrant from the Federal Court to collect information that is more than minimally intrusive.
Supporting Authorized Access to Information Act (SAAIA)
Q3 – What policy concerns does this legislation address?
• Canada, unlike other likeminded countries, including our G7 and Five Eyes partners, does not have a legal framework that requires electronic service providers to put in place and maintain lawful access capabilities.
• This gap has resulted in investigative challenges, with providers not always having the ability to provide the information, even when investigators have the legal authority to request and access it.
• This is one of the factors that has made Canada heavily dependent on foreign allies, for tips and leads, hindering our ability to collaborate and contribute to international investigations.
• The Supporting Authorized Access to Information Act would help bridge that gap, and ensure that providers have the capabilities in place to support legally authorized requests.