Monday, October 14, 2019

What a CLOUD Act agreement will look like for Canada

The United States Department of Justice and the United Kingdom Home Office have announced that the two countries have signed a bilateral agreement “On Access to Electronic Data for the Purpose of Countering Serious Crime”. The Agreement is intended to be a bilateral agreement of the type anticipated under the CLOUD Act. Passed in March 2018, partially to address the litigation against Microsoft related to evidence in Ireland, the CLOUD Act authorizes the United States to enter into executive agreements with other countries that meet specific criteria related to rule of law, civil rights and privacy. Once laid before Congress and approved, the result is to lift each party’s legal barriers that prevent one country’s legal processes from being recognized in the other. Many countries have been seeking an alternative to the traditional channels of mutual legal assistance, which are seen as time consuming and cumbersome.

When it comes to orders directed at US custodians of information, the main barrier to be overcome is the American Stored Communications Act that prohibits most US service providers from providing the content of communications except in response to a US court order. These can be obtained via the mutual legal assistance system, but all the steps required to obtain these orders are seen by law enforcement and cumbersome and time consuming. Under a CLOUD Act executive agreement, US service providers will no longer be prohibited from providing such content in response to an appropriate foreign order. It is very important to note that the CLOUD Act does not make foreign orders enforceable (with full force of a domestic court order) in the United States, but merely removes this barrier.

On the UK side of the equation, changes were made in UK law to permit this under the Crime (Overseas Production Orders) Act 2019, which received Royal Assent in February 2019. The Agreement will enter into force following a six-month Congressional review period mandated by the CLOUD Act, and the related review by UK’s Parliament.

Australia has already announced that it is seeking its own CLOUD Act executive agreement, and Canada is rumoured to be in similar discussions.

The Canadian Association of Chiefs of Police have been lobbying pretty hard for an executive agreement between Canada and the US, and called for it in their 2018 Annual Resolutions:

BE IT FURTHER RESOLVED that the Canadian Association of Chiefs of Police urges the Government of Canada to negotiate a bilateral data-sharing agreement with the United States of America who are authorized to do so pursuant to the CLOUD Act, and;

BE IT FURTHER RESOLVED that the Canadian Association of Chiefs of Police seeks a commitment from the Government of Canada for meaningful consultation with the CACP during the development of these instruments.

So what would this look like for Canada? The CLOUD Act and executive agreements are based on reciprocity, meaning that not only can Canadian law enforcement obtain information from US-based service providers, but American law enforcement can obtain information from Canadian-based information custodians. Currently, that’s mostly a no-go except through the MLAT.

In order for Canada to sign an executive agreement and give it effect, it would have to amend the Criminal Code and other statutes to give Canadian production orders extraterritorial effect or to create a new class of production orders, in a manner that is similar to the UK Crime (Overseas Production Orders) Act 2019. Notwithstanding the wishful thinking of many in Canada’s law enforcement community (relying, in part, on the wrongly-decided Brecknell decision from BC), Canadian production orders to not operate extraterritorially.

Removing Canadian legal barriers to foreign court orders that are subject to the bilateral executive agreement will likely be the most controversial part of the process. Canadians likely do not mind if Canadian law enforcement are able to obtain data about Canadian suspects in Canadian criminal investigations from foreign service providers. They likely will care about whether US law enforcement can obtain access to information from Canadian service providers.

Currently, all Canadian privacy laws prevent disclosure to foreign law enforcement under foreign orders. That includes private sector privacy laws, like the federal Personal Information Protection and Electronic Documents Act and provincial equivalents. The list would also include the health privacy laws in effect in most Canadian provinces, and each public sector privacy law. Currently, the public sector laws in British Columbia and Nova Scotia specifically prohibit disclosures in response to “foreign demands for disclosure”. This will either have to be removed or Canada will need to negotiate an exception in its executive agreement with the US to carve out information that is subject to public sector privacy laws.

What will likely be lost in the discussion and debate is the fact that CLOUD Act agreements are not intended to simply give effect to all orders from the other state. They are intended to create a form of passing lane in the MLAT for certain kinds of orders where the requesting state has a strong interest in the data and the receiving state has a minimal interest. For example, Canadian authorities can’t use a qualifying order to get information about a US suspect from a US service provider. Those would still have to go through the MLAT, subject to close scrutiny by American authorities. Likewise, US authorities should not be able to obtain information about Canadians from a Canadian service provider under this arrangement.

What also needs to be emphasised is that any Canadian amendments should not go any further than mirroring the changes made in the US law. The CLOUD Act does not make foreign orders enforceable (with full force of a domestic court order) in the United States, but merely removes certain barriers. Canadian amendments should do the same and make sure that a Canadian service provider has resort to Canadian courts and the Charter to review any foreign demands. And these orders should be limited to serious crimes.

I expect it will be an interesting discussion when it is finally announced. I would hope there is meaningful discussion, rather than just unveiling it as a fait accompli.