On February 14, 2012, the Minister of Public Safety tabled Bill
C-30, the government's most recent proposal for so-called
"lawful access" legislation which would enhance its
online surveillance powers. Titled the Protecting Children from Internet Predators
Act, the bill has faced considerable criticism from
privacy advocates and legal scholars, and the government announced on February 24 that
it would delay consideration of the bill while it contemplated
changes to address privacy concerns.
Notwithstanding the risks to personal privacy raised by Bill
C-30, the bill would also expand the powers of the Commissioner of
Competition when investigating companies and individuals suspected
of having contravened or engaged in reviewable conduct under the
Competition Act. Among other
changes, the Protecting Children from Internet Predators
oblige telecommunications service providers to provide the
Commissioner of Competition (or a designee) with identifying
information about their users upon written request of the
Commissioner in the performance of her duties;
authorize the Commissioner (or a designee) to make demands
requiring persons to preserve data in their possession or control
in certain circumstances when investigating potential offences
under the Deceptive Marketing Practices and Civil Matters
provisions of the Act and when investigating potential
contraventions of sections 32 to 34 of the Act;
on an ex parte application by the Commissioner (or a
designee), authorize a judge to order a financial institution
to prepare and produce a document setting out account information
about a person being investigated under the Deceptive Marketing
Practices or Civil Matters provisions of the Act and when
investigating potential contraventions of sections 32 to 34
(certain Special Remedies) of the Act; and
expand the definition of "record" in section 2(2) of
the Act to include any medium on which information is registered or
Wiretaps may only be used as investigative tools by the
Commissioner and officials at the Competition Bureau after
obtaining a court order authorizing what would otherwise violate
constitutional rights. Interestingly, some of the proposed
reforms, which the government says have the objective, among other
things (no-doubt related to the title of the bill), of
"ensur[ing] that telecommunications service providers have the
capability to enable national security and law enforcement agencies
to exercise their authority to intercept communications"
require no such judicial authorization. In particular, orders to
oblige telecommunications service providers to provide subscriber
information and to require persons to preserve data can be made by
the Commissioner (or a designee) directly, while other measures
(e.g., orders to compel banks to provide account
information) require judicial authorization on an ex parte
application by the Commissioner.
The debate over lawful access measures – proposed in
several bills over the past few years – extends well
beyond the Competition Act.
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