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.
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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:
We Can’t Hear You: The Shameful Review of Bill C-51 By the Numbers
The Standing Committee on Public Safety and National Security will hold its clause-by-clause review of Bill C-51, the Anti-Terrorism bill, this morning. The government is expected to introduce several modest amendments that experts note do little to address some of the core concerns with the bill. While there is some tinkering with the information sharing provisions, the law will still allow for widespread sharing without effective oversight from the Privacy Commissioner of Canada. Moreover, key concerns with respect to the CSIS Act (warrants that can violate Charter rights) and broader oversight and accountability remains untouched.
None of this comes as a surprise. Earlier in the committee hearings, Green Party leader Elizabeth May lamented that “the hearing process is a sham. They’re not listening to witnesses.” Now that the hearings have concluded, the data bears this out. Witnesses from across the political spectrum called for changes to the information sharing rules, to oversight, to the CSIS powers, and to the advocating or promoting terrorism provision, yet Conservative MPs never bothered to listen.
Few legislative issues are as important as the security and privacy of Canadians, but the entire hearings were structured to avoid hearing from experts, to asking irrelevant questions, or to bringing in witnesses with scant knowledge of the proposed bill. Just how bad was it? The Bill C-51 hearings by the numbers:
Public Safety and National Security Committee Releases Counterfeiting Report
The Public Safety and National Security Committee has released its report on counterfeiting (I appeared before the committee in the spring). The report makes 14 recommendations, most of which unsurprisingly track the recommendations from the Canadian Anti-Counterfeiting Network. These include criminal remedies in the Trademarks Act, inclusion of copyright within […]
Recent Posts
Tech Exodus: Why Bill C-22’s Privacy and Security Risks Will Drive Digital Services Out of the Country 
The Lawful Access Two-Headed Surveillance Monster: How Bill C-22 Went Off the Rails 
How Much Further Will Lawful Access Go?: Police Chief Tells Bill C-22 Hearing That Three Years of Metadata Retention Would Be “Ideal” 
Bill C-22’s Groundhog Day: Why the Government’s Dismissal of Signal, Apple and the U.S. Congress Concerns Runs Back the Disastrous Online News Act Playbook 
Slick Videos Won’t Save Lawful Access: Why The Government’s Bill C-22 Defence Avoids the Charter, Privacy and Security Concerns Raised By Critics
