Liberals offer more search and intercept powers to police and CSIS with new bill

OTTAWA — After their first crack at creating a new lawful access regime was criticized from all sides, the Liberals tabled legislation Thursday proposing a slightly narrower set of warranted and unwarranted search powers for police and intelligence agencies.

In bill C-22, the Liberals offer circumscribed unwarranted powers but slightly broader warranted ones to authorities compared to those proposed in bill C-2 tabled last spring.

The ability to obtain Canadians’ private information and intercept communications, known as “lawful access,” is one of the most intrusive powers afforded to police and intelligence agencies. Creating such a regime for the digital age in Canada has been the subject of fierce debate for decades.

Canadian police and intelligence agencies have long complained that the country lags significantly behind its G7 counterparts because it does not have a lawful access regime adapted to the digital age.

“Canada is woefully behind our most important allies. Technology has moved forward; our laws are stuck in the previous century,” Public Safety Minister Gary Anandasangaree told reporters Thursday, flanked by various police chiefs, Liberal colleagues and Justice Minister Sean Fraser.

In bill C-22, the government is proposing that police and the Canadian Security Intelligence Service (CSIS) only be able to approach telecommunications companies and ask them if, yes or no, an individual is a client before having to get a warrant for more information.

That’s a significant step back from the original proposal in C-2 that would have allowed them to approach any service provider (including those protected by privilege such as doctors and lawyers) to ask if an individual was a client, for how long, where, and if the company knew of other service providers who had dealt with that individual. All without a warrant.

The bill also proposes new obligations to electronic service providers to organize and retain for one year certain types of client metadata — including location —  in a way that makes it obtainable by law enforcement or CSIS with a warrant.

That excludes some information such as web-browsing history and social media history.

That means that if passed, the bill would compel electronic service providers to store and make information like device locations or cameras available to police or CSIS with the requisite warrant. That could be used to track a person’s live location in case they pose a threat to national security or are considered to be in danger, the government cited as examples.

“I want to be clear what C-22 is not. It is not about surveillance of Canadians going on about their daily lives. It is about keeping Canadians safe in the online space,” Anandasangaree said.

“There’s an actual series of tools here that will eventually lead to greater success, greater efficiencies in police investigations, greater solvency in crime and quite frankly, improving the safety of Canadians and, more importantly, addressing the concerns of victims,” added RCMP senior deputy commissioner Bryan Larkin.

But privacy specialist Tamir Israel countered that the new bill goes further than the previous one by not only allowing police to get a warrant for live access to a device, but forcing companies to store one year’s worth of people’s sensitive data to be accessed by law enforcement.

“Being able to categorically order companies to keep everybody’s information, not just people who are suspected of crimes… is different from getting a company to build a backdoor that then police could walk through to grab information,” said Israel, the director of the Canadian Civil Liberties Association’s (CCLA) privacy, surveillance and technology program.

“You’re both putting people’s privacy at risk and you’re creating cybersecurity threats.”

The bill also proposes a new type of warrant application that would allow Canadian police seeking information held by a foreign (likely U.S.) tech company to apply for a production warrant from a Canadian judge. The order would not be binding for the foreign company but would provide legal backing for the organization to fork over the data voluntarily.

Police and CSIS have argued that the obligation for electronic service providers to organize and retain certain information so that it can be obtained via a judicial warrant is crucial to ensure investigations can move forward in a timely manner.

But privacy and civil rights advocates as well as some tech groups counter that it creates a “backdoor” to access Canadians’ data that can also be exploited by criminals to steal the information.

“This revised bill falls short of protecting Canadians from weakened encryption and unauthorized spying,” wrote Josh Tabish, senior director for Canada at the Chamber of Progress , a U.S.-based tech lobby group.

The Liberals took a first stab at the issue in their first ever bill, C-2. But the proposals were lambasted by opposition parties and privacy and security advocates alike for being overly broad and invasive.

“This new bill is informed by views of stakeholders and parliamentarians who voiced serious concerns with the former bill,” Anandasangaree said Thursday.

National Post

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