Canadian CALEA Sparks Controversy

Published On February 16, 2012 | By Elizabeth Banker | General, International
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With the backing of the Prime Minister, the Canadian government introduced new legislation to the Canadian House of Commons on February 14, 2012 seeking new police powers and obligations for service providers in the name of fighting child pornography.  Public Safety Minister Vic Toews was quoted as saying you are “either with us or with the child pornographers.”  U.S. providers are no strangers to that type of rhetoric which has most recently been used in support of U.S. data retention proposals.  The proposed intercept capacity requirements will also seem familiar to U.S. providers who are already covered by CALEA.  That may be where the similarities end.

Bill C-30, Investigating and Preventing Criminal Electronic Communications Act, now styled as the Protecting Children from Internet Predators Act, seems to be aimed at moving Canada in the opposite direction than online privacy has been moving in the U.S. — that is towards less privacy as opposed to more.  In addition to expanding CALEA-like requirements to a wider range of service providers, the proposed legislation would allow police access to communications content, in real-time and storage, if there is a “reasonable basis” to believe a crime has or will occur and that the information obtained “will assist” in the investigation.  This same standard is applicable to police use of tracking devices on vehicles, individuals and to transmission data from storage and in real-time.  With decision such as U.S. v. Warshak, and a long-line of cell tower and GPS location data cases finding that U.S. authorities should only have access to such information based on a search warrant, the “reasonable basis” standard seems shockingly low by comparison.  In fact, many of the police authorities in the legislation may be exercised without any judicial review.

The bill also has provisions to make these new law enforcement tools available to assist foreign governments with investigations in the context of mutual legal assistance. The U.S. government will likely benefit from these powers if C-30 is passed.  The U.S. Government is also likely to continue to pursue its own expanded powers through “CALEA II” on the basis that many companies will have to comply for Canada.  Commentators have suggested that the bill is likely to be passed, though it certainly has stirred up its fair share of controversy.

About The Author

Elizabeth Banker has developed a practice that includes advising clients on interactions with foreign and domestic law enforcement, strategic issues related to data storage and transfers, providing advice on surveillance and employee monitoring laws inside and outside the U.S., as well as data protection, security and consumer protection issues.