Canada: Not Their Finest Hour: The U.K. Surveillance Law

Last Updated: December 15 2016
Article by Lisa R. Lifshitz

Something extraordinary recently happened in the U.K., and I am not talking about Brexit. On Nov. 29, following passage by Parliament, Her Majesty the Queen signed into law the Investigatory Powers Bill.

Known to critics as the "Snoopers Charter," the act is possibly one of the most far-reaching surveillance laws ever passed by a democratic nation. While some sections of the act received Royal Assent on Nov. 29, the act will come into force in stages, initially as early as the end of this year.

The U.K. government first published the draft bill in November 2015 to replace the existing Data Retention and Investigatory Powers Act 2014, or DRIPA, certain sections of which will expire at the end of December. However, the real impetus for the act arguably was to retroactively legitimate practices that the U.K.'s security apparatus had been using for years without disclosure to the public, in addition to expanding the current scope of government surveillance powers.

Weighing in at more than 300 pages, the act is quite long so I will focus only on a few key concerns as noted below.

  1. Big data collection. Under the act, the U.K. government can provide any telecommunications operator with a "data retention notice" that obliges them to retain relevant "communications data," including the "Internet connection records" of their users. Law enforcement agencies, including the police, intelligence services, etc. will be able to access this data without any court order or warrant on request.
  2. Bulk interception and data collection. Essentially legalizing the surveillance activities exposed by Edward Snowden, the act permits the collection of metadata and targeted hacking of individual computers, bugging phone calls, reading texts, etc., so long as warrants are properly obtained. Much of the act is devoted to rules around such warrants and the act provides for the Secretary of State, approved by a judicial commissioner, to issue these warrants. These warrants include: (i) interception warrants (targeted, thematic or bulk); (ii) equipment interference warrants (essentially an elegant way of describing "hacking") (targeted, thematic or bulk); and (iii) bulk communication data acquisition warrants.
  3. Potentially breaking encryption. The act contains a provision allowing the U.K. government to serve a company with a "technical capability notice" requiring the entity to "take all steps specified in the notice for the purpose of complying with those obligations." These obligations include "obligations relating to the removal by a relevant operator of electronic protection applied by or on behalf of that operator to any communications or data." Several technology companies, including Google, Microsoft, Twitter and Yahoo, have interpreted this as obliging vendors upon demand to remove, weaken or circumvent encryption on user's data whenever "practicable."
  4. Speak no evil. Continuing the "big brother" theme, companies that are actually subject to the act are forbidden to generally talk about it. For example, in an effort to possibly deter whistleblowers, the act criminalizes "unauthorized" disclosures under the section dealing with equipment interference warrants and the punishment for any breach is a fine, a prison sentence of up to 12 months (up to five years on conviction on indictment) or both.
  5. Scope. Many of the definitions in the act are (intentionally) quite broad as is the scope of the act. For example, some commenters have noted that the act will apply to any provider of a service that facilitates the creation, management or storage of communications transmitted by means of a "telecommunication system." According to the draft Code of Practice, this would include cloud-based services and services providers, web-based email, messaging applications, social media companies and online businesses that provide telecommunications services to users and customers as part of their business. The local café providing public Wi-Fi would also likely be in scope as well as "private" networks (schools, universities and domestic homes).

Any Canadian entity that provides a telecommunications service to individuals in the U.K. or controls a telecommunication system in the U.K. may fall within the scope of the act. The act also describes methods of serving warrants on non-U.K. persons, but interception warrants and targeted communication data acquisition are supposed to take into account (i) any requirements or restrictions under the non-U.K. law of that country or territory that are relevant to the taking of those steps; and (ii) the extent to which it is "reasonably practicable to comply with the duty in [a] way that does not breach any of those requirements or restrictions."

There is no question that the act is controversial. Critics have identified many shortcomings in the act from civil liberties' and privacy perspectives, alleging that the proposed "checks and balances" in the act, including the new supervisory body, the Investigative Powers Commission, are inadequate. The act has already been criticized by the U.K. Open Rights Group and Privacy International, which described it as "intrusive" and "draconian." A petition asking the U.K. government to repeal the law has thus far garnered 154,888 signatures, but Parliament has declined to schedule a debate on this petition. Court challenges will likely ensue.

By contrast, only days after the act was passed, the federal Privacy Commissioner of Canada, Daniel Therrien, along with his provincial counterparts, stressed, in a formal submission to the Canadian federal government's public consultation on Canada's national security framework, the need to address privacy risks related to information sharing and the collection of metadata. Therrien was quoted as saying:

"These key lessons from history remind us that clear safeguards are needed to protect rights and prevent abuse, that national security agencies must be subject to effective review, and that any new state powers must be justified on the basis of evidence. Government should only propose and Parliament should only approve new state powers if they are demonstrated to be necessary and proportionate — not merely convenient."

"In my view, this is not the time to further expand state powers and reduce individual rights. Rather, it is time to enhance both legal standards and oversight to ensure that we do not repeat past mistakes and that we ultimately achieve real balance between security and respect for basic individual rights."

Amen to that and let's hope that our Parliament — unlike the U.K. Parliament — listens.

Originally published by Canadian Lawyer Online - IT Girl Column.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Lisa R. Lifshitz
In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions