The House of Commons public safety committee started its clause-by-clause review of Bill C-22 last week, the stage at which the lawful access bill’s actual statutory language is settled and the privacy safeguards are either written in or left out. The witnesses the committee included said a lot about the government’s commitment to addressing privacy concerns and to ensuring a balanced bill. Clause-by-clause reviews typically include departmental officials as witnesses, who provide support to the committee by answering technical questions. Years ago, officials were viewed as non-partisan, but today officials invariably defend the government’s position and subtly (or not so subtly) argue against amendments. Including non-departmental witnesses is very rare since they have already had the chance to make their case to the committee. Yet the RCMP and CSIS, the agencies that have lobbied for these powers and will wield them, were on hand last week to guide members through the Bill C-22 amendments. Those witnesses will be unlikely to support potential privacy-focused amendments. Even more astonishing, efforts to include Philippe Dufresne, the Privacy Commissioner of Canada, whose recommendations several of the amendments under consideration are drawn from, were rejected by Liberal MPs on the committee.
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The Law Bytes Podcast, Episode 269: Inside the Bill C-22 Committee Hearing for the Case Against Government’s Lawful Access Plans
The government’s lawful access bill has been the target of criticism for weeks, with companies, governments, and experts on privacy and security all sounding the alarm. Much of the momentum against the bill began to build once the Standing Committee on Public Safety and National Security held hearings on the legislation, providing an opportunity for critics to voice their concerns. Those hearings continue this week with both Google and Apple scheduled to appear.
For this episode of the Law Bytes podcast, I go into the hearing room for my appearance on Bill C-22. The appearance was a rerun of the podcast episode featuring a roundtable on the bill with David Fraser and Robert Diab. This episode features my opening statement and exchanges with MPs from all parties on a wide range of issues.
How Much Further Will Lawful Access Go?: Police Chief Tells Bill C-22 Hearing That Three Years of Metadata Retention Would Be “Ideal”
Metadata retention has emerged as one of the biggest lawful access concerns, with requirements that providers retain metadata for all subscribers for up to one year. As I argued before the Standing Committee on Public Safety and National Security last week, when retained at scale, the retention becomes a comprehensive surveillance map of virtually every Canadian with information on where and when they go and who they interact with. Under Bill C-22, this data would apply to every subscriber regardless of suspicion. The government’s Charter Statement remarkably fails to address the regime, despite the fact that bulk retention frameworks of this kind have been struck down by the European Court of Justice in Digital Rights Ireland and Tele2 Sverige, and by Germany’s Federal Constitutional Court.
Make It Make Sense: My Appearance Before the Standing Committee on Public Safety and National Security on Bill C-22’s Lawful Access Plan
Fresh off appearing before a Senate committee on AI on Wednesday, yesterday I provided expert testimony to the Standing Committee on Public Safety and National Security as part of its study on Bill C-22, the government’s latest lawful access plan. Appearing alongside David Fraser and Robert Diab (the same trio that discussed the bill on my Law Bytes podcast), I opened my remarks by noting that technologies change, the governments may change, but the challenge with lawful access has always been the same: to give law enforcement and security agencies the tools they need to address serious crime while respecting Canadians’ privacy rights and the constitutional framework the Supreme Court has built around privacy in decisions such as Spencer and Bykovets. I focused on three major concerns with the bill, including mandatory metadata retention, the inadequacy of the systemic vulnerability safeguards, and the lowering of the production order threshold for subscriber information. My full opening statement is embedded below.
Public Safety Committee Recommends Against Lawful Access Reforms
Last month, I wrote about the recent initiative to revive lawful access, the rules that govern police access to Internet and subscriber information. A cybercrime working group has held consultations (I participated in one) as law enforcement seeks new powers for warrantless access to some ISP information (called “pre-cursor” data) and a new, lower threshold warrant for other subscriber data. While law enforcement has argued that the current system is broken, the House of Commons Standing Committee on Public Safety and National Security has recommended that the current approach remain unchanged.
The committee’s much anticipated report on developing a road map for national security contains dozens of recommendations (my colleague Craig Forcese reviews many of them) including one on lawful access. It states:
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