Canada: Amendments To US Criminal Procedure May Threaten The Privacy Of Canadians

Last Updated: December 28 2016
Article by Devry Smith Frank LLP

The explosion of modern communications technology is increasingly connecting Canadians to the world abroad. Geographical boundaries and distances are no longer as significant as they once were. Today, our phones, the device most of us carry in our pockets, enables us to access our private and confidential information from anywhere in the world, at any time. This same digital interconnectedness, however, makes our information vulnerable to hackers and other criminal enterprises. Indeed, for all its miraculous connectivity and convenience, this brave new world presents unprecedented challenges.

Like never before, lawmakers are having to grapple with the tension between safeguarding our privacy on the one hand, and maintaining our security on the other. Canadians entrust lawmakers, as part of our democratic society, to seek a delicate balance – allowing law enforcement to do its job while preventing undue intrusion into our private affairs. Crucially, if we disagree with their approach, we are free to voice our objections at the ballot box.

Canadian law, however, applies only within Canadian borders. And as cybersecurity becomes more of concern, hackers may not be the only parties interested in Canadians' private information. If foreign governments enact laws effectively granting their agents access to this information, even in limited circumstances, Canadians have little say in the matter.

Recent amendments to Rule 41 of the United States' Federal Rules of Criminal Procedure may do just that. On December 1, 2016, changes came into effect that significantly broaden American federal law enforcement's ability to access – or 'hack' into – people's private computers, cellphones, and other devices outside of their local and national jurisdictions. This has caused much consternation south of the border. Should Canadians also be concerned?

What is Rule 41?

The Federal Rules of Criminal Procedure, as the name implies, govern the procedural conduct of federal criminal prosecutions. Rule 41 addresses how magistrate judges issue warrants for searches and seizures, to law enforcement.

Historically, judges' authority to issue such warrants was geographically limited – search warrants generally had to specify a particular person or thing, within a particular jurisdiction. Under the old Rule 41, a court could not issue a warrant for searches outside their district – that is, an extraterritorial warrant – unless one of four criteria was satisfied:

(1) the property is within the jurisdiction but may be moved out of the jurisdiction before the warrant is executed; (2) the property is part of an investigation of domestic or international terrorism; (3) tracking devices are used which can be monitored outside the jurisdiction if installed within the jurisdiction; or (4) the property is located in a U.S. territory or U.S. diplomatic or consular mission.1

Where the target's location is simply unknown, an extraterritorial warrant was not possible. (This was famously upheld in 2013 to reject granting such a warrant in In re Warrant to Search A Computer at Premises Unknown, frustrating a federal investigation into an online child pornography ring.) In all cases, before and after the amendments, there must be 'probable cause' that evidence of criminal activity will be found.

Among other things, this territorial restriction was meant to prevent "forum shopping", whereby law enforcement could pick and choose between different judges in different districts and select one from which they expect a more sympathetic ear.

What's New?

The new amendments are meant to equip federal authorities with new tools for conducting investigations in the internet age. There is certainly some cause for this. Anonymity on the web is readily achievable, and makes it easier to hide perpetrators of criminal activity. It also makes it harder for investigators to gain the requisite warrant to search what is, often, an unknown device in an unknown location.

The amendments mean that a judge, in a district where crime-related activity has taken place, can authorize law enforcement to,

...use remote access to search electronic storage media and to seize or copy electronically stored information located within or outside that district if:

  1. [the location of the media or information] has been concealed through technological means; or
  2. in an investigation of [computer fraud and related activity], the media are protected computers that have been damaged without authorization and are located in five or more districts. [my emphasis]

There is some debate as to the scope and significance of the changes. The US Department of Justice emphasizes that the law already provided for "remote searches", and that the "amendments do not change any of the traditional protections and procedures under the Fourth Amendment". It is also noteworthy that the Supreme Court of the United States has given the amendments their approval. Some however, including Oregon Senator Ron Wyden, worry that fundamental protections are not adequately protected under the new rule.

While Senator Wyden's concerns are directed at his Americans constituents, the fundamental rights of Canadians are also at play.

A central purpose of these changes is to facilitate searches of devices the location of which has been concealed, such as those using a Virtual Private Network (VPN) or other anonymity networks. One criticism is that this will necessarily involve searches of innocent peoples' computers, because the software that conceals a target's location will often lead investigators 'through' these other devices en route to their end targets. These innocent devices may be anywhere in the world. This may mean compromising the security, and certainly the privacy, of innocent Canadians.

Aside from these innocent parties, a Canadian may turn out to be the ultimate target of the warrant. Even if they are guilty, the prospect of Canadians being subject to American laws will be profoundly unsettling to many. Democracy is predicated on the legitimate power of the people, alone, to govern themselves; if Canadians do not control the laws under which their privacy and security can be undermined, this basic principle is undercut.

Insofar as Canadians might be affected, the relations between our society and that of our closest ally and trading-partner, the United States, also risk being strained. The friendship between Canada and the US rests on a strong foundation of shared interests, values, and history. Nonetheless, these amendments engage fundamental concerns – for democratic accountability, for privacy, for security – which certainly have the potential to impassion the public.

Whatever risks Canadians may or may not face, the potential for unintended consequences must be acknowledged before it can be resolved. The conversation has already started, and it is surely far from over.


[1] Thompson II, Richard M., "Digital Searches and Seizures: Overview of Proposed Amendments to Rule 41 of the Rules of Criminal Procedure", Congressional Research Service (8 September, 2016), online: at 2.

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.

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