Come back with a warrant by Rosalyn Davis (CC BY-NC-SA 2.0) https://flic.kr/p/aoPzWb
Lawful Access
Government Reverses on Bill C-2: Removes Lawful Access Warrantless Demand Powers in New Border Bill
The government today reversed course on its ill-advised anti-privacy measures in Bill C-2, introducing a new border bill with the lawful access provisions (Parts 14 and 15) removed. The move is welcome given the widespread opposition to provisions that would have created the power to demand warrantless access to information from any provider of a service in Canada and increased the surveillance on Canadian networks. The sheer breadth of this proposed system was truly unprecedented and appeared entirely inconsistent with Supreme Court of Canada jurisprudence and the Charter of Rights and Freedoms. That was the immediate reaction when the bill was tabled in June (my posts here, here, here, here, here, here, and here. Law Bytes podcasts on the topic here, here, and here) and there was never a credible response forthcoming from government officials. Indeed, if anything, meetings with department officials made plain that this was an embarrassingly rushed, poorly drafted piece of legislation that required a reset.
The Law Bytes Podcast, Episode 245: Kate Robertson on Bill C-2’s Cross-Border Data Sharing Privacy Risks
Bill C-2, the government’s proposed lawful access legislation, has been the subject of several prior episodes covering warrantless disclosure of information as part of the new information demand power in Part 14 of the bill as well as some of the surveillance technology capabilities found in Part 15. Those remain major issues, but there is another element of the bill that deserves greater attention, particularly at this moment when the Canada – US relationship is increasingly fraught. That issue involves mandated data sharing with implications for Canada’s international treaty obligations under the “Second Additional Protocol” to the Budapest Convention as well as the US Cloud Act. Kate Robertson, a lawyer and senior research associate at the Citizen Lab in the Munk School at the University of Toronto, wrote an extensive brief on these issues soon after the bill was introduced. She joins the Law Bytes podcast to talk about a critical Bill C-2 issue that has thus far attracted limited attention.
Government Doubles Down in Defending Bill C-2’s Information Demand Powers That Open the Door to Warrantless Access of Personal Information
The return of the House of Commons from the summer break brings with it a resumption of debate on government bills. Topping the list this week is Bill C-2, the omnibus border measures bill, that buries dangerous lawful access provisions that open the door to warrantless access to personal information and increased surveillance capabilities in Canadian networks. I wrote multiple posts on the privacy concerns before the summer (here, here, here, here, here, and here), expressing concern not only with the substantive provisions but also with a bill that combines everything from border measures to restrictions on cash transactions to warrantless access for law enforcement to personal information. The risk is that no issue will get sufficient attention as major issues get lost among the myriad of disparate provisions. For that reason, the lawful access provisions in Parts 14 and 15 in the bill should be removed and contained, if at all, within a separate bill.
The Law Bytes Podcast, Episode 238: David Fraser on Why Bill C-2’s Lawful Access Powers May Put Canadians’ Digital Security At Risk
The Bill C-2 lawful access focus has thus far primarily centred on the creation of a new warrantless information demand power and the expansion of production orders to access information. Those provisions are found in Part 14 of the bill, but there is also a Part 15 that requires closer scrutiny. It grants law enforcement access to electronic service provider networks, including inspection, oversight, and demands regarding the equipment on their networks. At issue is everything from the use of end-to-end encryption to notifications of network vulnerabilities.
David Fraser is one of Canada’s leading privacy lawyers and he’s been sounding the alarm on the implications of those provisions. He joins the Law Bytes podcast to talk about the implications of Part 15 – aka the Supporting Authorized Access to Information Act – and what it means for network providers and the safety, security, and privacy of Canadians.
Why Bill C-2 Faces a Likely Constitutional Challenge By Placing Solicitor-Client Privilege at Risk
The government’s inclusion of warrantless information demand powers in Bill C-2 has attracted mounting concern, particularly the stunning decision to target everyone who provides services in Canada which creates near limitless targets for warrantless disclosure demands. Department of Justice officials have confirmed that Bill C-2 extends far beyond just telecom companies to services such as financial institutions, car rental companies, and hotels. The inclusion of professional services that frequently face strict confidentiality obligations deserves greater scrutiny as the approach virtually guarantees a constitutional challenge alongside the challenge on privacy grounds in light of the previous Supreme Court of Canada rulings in Spencer and Bykovets.
The implications for the legal community, who face strict solicitor-client confidentiality requirements, are particularly notable. Under Bill C-2, lawyers could be compelled to confirm whether they have provided services to client, whether they have information about the client, and when they provided the service, including when a person became a client. If they are aware of other service providers, they must provide that information as well. These disclosure demands come without a warrant or court oversight and lawyers could be barred from advising their clients about the demand for a year. Lawyers would undoubtedly seek to challenge the demand, but would only have five days to do so.
Recent Posts
Senate Bill Would Grant Government Regulatory Power to Mandate Age Verification For Search, Social Media and AI Services Accompanied By Threat of Court Ordered Blocking of Lawful Content 
Government Reverses on Bill C-2: Removes Lawful Access Warrantless Demand Powers in New Border Bill 
Why The Recent TikTok Privacy Ruling Swaps Privacy for Increased Surveillance 
The Law Bytes Podcast, Episode 245: Kate Robertson on Bill C-2’s Cross-Border Data Sharing Privacy Risks 
The Law Bytes Podcast, Episode 244: Kris Klein on the Long Road to a Right to be Forgotten Under Canadian Privacy Law
