A truck drives past the passenger entry point at the U.S. and Canada border in Surrey, B.C. The Strong Borders Act would grant law enforcement the authority to access internet subscriber information without a warrant.ETHAN CAIRNS/The Canadian Press
A border security bill tabled this week by the federal government would grant CSIS, the police and other law enforcement agencies the right to demand information about internet subscribers – including their locations – without a warrant from a judge.
The proposed changes, part of a sprawling piece of legislation unveiled on Tuesday, were criticized by civil liberties advocates and legal experts, who argued that the measures would run counter to previous court rulings and would almost certainly face new challenges.
The bill, known as Bill C-2 or the Strong Borders Act, outlines significant changes to the immigration and refugee system, as well as measures to boost border security, as Ottawa attempts to allay concerns raised by U.S. President Donald Trump.
But it also includes an array of other measures, including provisions related to online communication, new restrictions on large cash transactions and an overhaul of Canada’s financial-crime laws.
If passed, Bill C-2 would give CSIS agents, police officers and peace officers – who could include border agents, prison guards and special constables – the ability to demand information from electronic service providers about whether someone is a subscriber, as well as the municipality in Canada or abroad where they receive or have received the service.
Public Safety Minister Gary Anandasangaree says the bill seeks to combat organized crime, disrupt flows of fentanyl and tighten up the immigration system.
The Canadian Press
The bill would allow such a demand without a warrant if there were “reasonable grounds to suspect” that a crime could be committed, or that any breach of a law passed by Parliament may take place.
Demands for more detailed information – for example for text messages and e-mails – would require a warrant signed by a judge, unless it is in “exigent circumstances” that demand urgent action.
Shakir Rahim, director of the Canadian Civil Liberties Association’s criminal justice program, said “the proposals permit CSIS to obtain subscriber information without a warrant, and potentially to gag persons or entities from disclosing those requests.”
He added: “The government has not indicated what policy concerns, aside from vague references to security, these provisions are needed for.”
Michael Geist, the University of Ottawa’s Canada research chair in internet law, said the bill revives previous failed attempts – dating back to 1999 – by governments to gain “lawful access” to internet subscriber information.
They were derailed by a 2014 decision by the Supreme Court of Canada that there was a reasonable expectation of privacy in internet subscriber information, he said. In 2017, the House of Commons committee on public safety and national security recommended that, after the Supreme Court decision, no changes to the lawful access regime for subscriber information be made.
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Mr. Geist said the attempt to add “lawful access” measures in the border bill might be leveraging Prime Minister Mark Carney’s “once in a lifetime crisis opportunity.”
“The Supreme Court, I think, has been pretty unequivocal about the reasonable expectation of privacy that internet users have in their subscriber information and IP addresses, and because of that, that means you need a warrant,” he said. “And so Bill C- 2, this border bill, essentially seeks to circumvent that by saying that we’re not asking for the information, we are asking for information about the subscriber.”
“It seems to be entirely possible the court is still going to insist that there’s a reasonable expectation of privacy with even that information, and so it similarly still requires a warrant.”
Public Safety Minister Gary Anandasangaree told reporters on Wednesday that he was open to suggestions to strengthen the bill in committee. Launching Bill C-2 on Tuesday, he said he was satisfied it would not breach Canadians’ Charter rights.
Alice Hansen, his spokesperson, said the government was responding to a “long-standing request from law enforcement,” adding that the bill would help combat the fentanyl crisis in Canada, as well as online crimes against children.
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She said enabling law enforcement to gain basic information about where someone has an account would help them pursue inquiries. They would then know which telecommunications company they should target with a warrant to produce more detailed information. A judge’s order would be required to see more detailed information, such as e-mails and texts.
Leah West, an associate professor at Carleton University and expert in national security law and cyber operations, said CSIS is already able to obtain such basic information from telecoms. She thinks the government is making it explicit in legislation what they are allowed to get without a warrant.
She added that warrants from the federal court are far from a “rubber stamp” and can be a lengthy process to obtain, requiring a lot of detail and information.
She said she thinks the changes in Bill C-2 would “help build what you need to actually go and ask for a production order” to get more detailed information.
But Matt Hatfield, executive director of advocacy group OpenMedia, said the proposal could compel a large range of electronic service providers, including social media platforms, e-mail and messaging services, gaming platforms, telecoms and cloud storage companies, to disclose information about their subscribers including the province and local area where they use their services without judicial oversight.
Even such basic information, he said, could enable the police and security services to gain insight into someone’s behaviour online, raising serious concerns about personal privacy.
“This act cannot pass with its current text. This very deeply and fundamentally compromises the privacy of Canadians,” he said. “This appears to be one of the largest expansions of lawful access Canada’s ever seen.”
Mr. Hatfield said if the measure does pass, he expects it to face a challenge in court.