On June 3, the new Canadian government tabled Bill C-2 in Parliament, called “An Act respecting certain measures relating to the security of the border between Canada and the United States and respecting other related security measures” but with a short title of the “Strong Borders Act”.
Once again, following in the footsteps of past conservative and liberal governments, it contains a trojan horse that revives what has come to be known as “Lawful Access”. I’m really getting tired of these sorts of bills. (See Canadian Privacy Law Blog: Past Canadian "lawful access" attempts, both by Liberal and Conservative governments.)
In my last episode, I discussed Part 14 of the Bill, which creates new law enforcement authorities to get customer information, either without a warrant or court order, or with an order but based on a very low standard. In this episode, I’ll go over Part 15, which creates a standalone “Supporting Authorized Access to Information Act”. The government says this is simply to make sure that electronic service providers have the capacity and capability to “share information” with “authorized persons”.
I think it goes beyond this. It is similar to Bill C-26 from the last Parliament, as it allows the government to dictate what technologies electronic service providers use. This time is to create the capability for law enforcement to plug into service providers’ systems.
Throughout this discussion, I can’t help but be reminded that the US has had something similar in their laws, and the mandated intercept capabilities were used by Chinese hackers to get access to data.
The "Salt Typhoon" hacking incident, attributed to a Chinese state-sponsored advanced persistent threat (APT) actor, came to light in late 2024 with revelations that the group had extensively compromised the computer systems of multiple major U.S. telecommunications companies. The stolen information included call and text message metadata, and in some high-profile instances, even audio recordings of phone calls belonging to government officials and political figures.
A critical factor facilitating the Salt Typhoon incident was the very infrastructure put in place to comply with the Communications Assistance for Law Enforcement Act (CALEA). Enacted in 1994, CALEA mandates that telecommunications providers build "lawful intercept" capabilities into their networks to allow law enforcement and intelligence agencies to conduct court-authorized wiretaps. While intended for legitimate surveillance, these mandated "backdoors" created inherent vulnerabilities within the telecom networks. Salt Typhoon exploited these CALEA-mandated systems, effectively turning the tools designed for lawful access into pathways for unauthorized espionage.
This is what’s coming to Canada …
The Supporting Authorized Access to Information Act creates a framework in which the Government of Canada can require electronic service providers to facilitate law enforcement and intelligence services’ access to data and information. Much of its scope is left to regulations. The sweep of what entities can be in scope of the Bill if very broad by regulating “electronic service providers”:
electronic service provider means a person that, individually or as part of a group, provides an electronic service, including for the purpose of enabling communications, and that
(a) provides the service to persons in Canada; or
(b) carries on all or part of its business activities in Canada. (fournisseur de services électroniques)
electronic service means a service, or a feature of a service, that involves the creation, recording, storage, processing, transmission, reception, emission or making available of information in electronic, digital or any other intangible form by an electronic, digital, magnetic, optical, biometric, acoustic or other technological means, or a combination of any such means. (service électronique)
This is extremely broad, and would likely capture almost all communications services that provide any service to Canadians. It likely covers VPN – or virtual private network – providers as they provide a service that involves the transmission of information. This would also scope in text messages, emails, phone calls, voice over IP calls and video calls.
The Act specifically will target “core providers”, who are “electronic service provider[s] belonging to a class of electronic service providers set out in the schedule.” In the version of the Bill tabled at first reading, the schedule is blank. I guess “to be determined”, but I expect it’ll be all the major telcos and internet service providers in Canada. It may include the significant messaging providers, like Apple, WhatsApp, Microsoft Teams, Zoom and email providers like Microsoft, Apple, Google.
It is very, very broad in its possible scope.
Ministerial regulations for “core providers”
The Act, in s. 5(2), empowers the government to create regulations placing obligations on core providers which relate to intercept and access capabilities and includes the installation of devices, etc. on behalf of “authorized persons”.
(a) the development, implementation, assessment, testing and maintenance of operational and technical capabilities, including capabilities related to extracting and organizing information that is authorized to be accessed and to providing access to such information to authorized persons;
(b) the installation, use, operation, management, assessment, testing and maintenance of any device, equipment or other thing that may enable an authorized person to access information; and
(c) notices to be given to the Minister or other persons, including with respect to any capability referred to in paragraph (a) and any device, equipment or other thing referred to in paragraph (b).
Importantly, a core provider is not required to comply with a regulation “if compliance with that provision would require the provider to introduce a systemic vulnerability in electronic protections (defined as ‘authentication, encryption and any other prescribed type of data protection’) related to that service or prevent the provider from rectifying such a vulnerability.” This would permit a regulated core provider to refuse to install a backdoor or compromise encryption if that would create a systemic vulnerability.
Core providers can apply for an exemption for a specified period of time, in order to have time to come into compliance.
Orders directed to specific electronic service providers
Per s. 7, the Minister is able to issue orders to any electronic service provider, regardless of whether they are a core provider, along the lines of regulations authorized under s. 5(2) for a specified period of time. In making the order, the Minister must consider:
(a) the benefits of the order to the administration of justice, in particular to investigations under the Criminal Code, and to the performance of duties and functions under the Canadian Security Intelligence Service Act;
(b) whether complying with the order would be feasible for the electronic service provider;
(c) the costs to be incurred by the electronic service provider to ensure compliance with the order;
(d) the potential impact of the order on the persons to whom the electronic service provider provides services; and
(e) any other factor that the Minister considers relevant.
The Minister, in their discretion, may provide compensation to offset some of the costs incurred in paragraph (c). Similar to compliance with regulations, an electronic service provider is not required to comply with a portion of an order that would “require the provider to introduce a systemic vulnerability in electronic protections related to that service or prevent the provider from rectifying such a vulnerability.”
The Minister is required to permit affected electronic service providers to make representations prior to issuing an order under s. 7.
Obligations to assist
The Act contains a very broad and problematic obligation on all electronic service providers to provide all reasonable assistance to a range of persons to “permit the assessment or testing of any device, equipment or other thing that may enable an authorized person to access information.” The list of persons authorized to make this demand include the Minister, CSIS employees, police officers and civilian employees of a police force.
There is no threshold and no limitation on this power. For example, there is no requirement for approval from the Minister or any other senior person. It does not have to be reasonably necessary for any purpose related to the Act. You could have a lineup of people from every municipal police department out the door of an electronic service provider, the they have to provide this unlimited and unbounded assistance.
Prohibitions on disclosure
The Act contains, at s. 15, very broad prohibitions on disclosure by electronic service providers, including whether one is subject to an order, the contents of an order, information relied upon by the Minister in making an order, representations made by the electronic service provider or the Minister, the fact that representations were made. This is ridiculous. It may make sense to give the Minister the power to issue gag orders from time to time, where they are of the view that disclosure of the information would compromise law enforcement or national security.
In this country secrecy should be the exception – and should have to be justified – not the default, particularly with respect to services we use every day and our civil liberties. This is so prone to overreach and possible abuse, and all of it takes place in the shadows.
It is very problematic that an electronic service provider is prohibited from disclosing “information related to a systemic vulnerability or potential systemic vulnerability in electronic protections employed by that electronic service provider”. This would mean that if any electronic service provider were to discover a vulnerability in their system, it would be prohibited by Canadian law from disclosing it to anyone. This may include a prohibition on disclosure to customers who may have been affected by a past or current vulnerability, or even that company’s own contractors who carry out security audits on its systems. For example, if a telco discovers a vulnerability in a router, they will tell the manufacturer of the router and various organizations that work diligently to make sure that the entire cybersecurity community can identify and fix vulnerabilities.
If a telco finds a vulnerability in a system used by all Canadian telcos (because the government will get to dictate what systems telcos use), they can’t alert the other telcos about that vulnerability.
Paragraph (g) is actively harmful to Canadians, and will be a huge boon for the bad guys who look for and exploit these vulnerabilities. It really, really has to go.
The parameters of these prohibitions on disclosure can be subject to regulations made pursuant to s. 17 of the Act.
Under s. 16, if an electronic service provider is to seek an application for judicial review of any order or decision under the Act, it is prohibited from doing so unless it gives fifteen days’ advance written notice to the Minister, along with a copy of the notice of application.
Under s. 17, the Government can make regulations respecting confidentiality and security requirements for electronic service providers and persons acting on their behalf must comply. Specifically, it authorizes regulations:
(a) respecting the disclosure of information referred to in section 15;
(b) establishing rules of procedure for the protection of information referred to in section 15 in administrative or judicial proceedings;
(c) respecting requirements related to employees of electronic service providers and other persons whose services may be engaged by electronic service providers, including with respect to their security clearance and location; and
(d) respecting security requirements with respect to the facilities and premises of electronic service providers.
This is extremely broad, and is not limited to confidentiality and security measures that are reasonably required related to the purposes of the Act. Remember, “electronic service provider” is broad enough to include service providers completely and entirely outside of Canada.
It potentially includes requirements for all of an ESP’s facilities regardless of location, and paragraph (c) even permits regulations regarding where facilities can be located, and security clearances for employees.
This is clear overreach. None of it is limited to protecting the security of the lawful intercept and information gathering capabilities dictated by the Act.
Enforcement and administration
The Act gives the Minister authority to designate persons (or classes of persons) to administer and enforce the Act. These designated persons are given vast powers under s. 19 to enter any place (other than a dwelling) to verify compliance or to prevent non-compliance with the Act. Within such a place, they are authorized to:
(a) examine anything found in the place, including any document or electronic data;
(b) make copies of any document or electronic data that is found in the place or take extracts from the document or electronic data;
(c) remove any document found in the place for examination or copying;
(d) use or cause to be used any computer or data processing system at the place to examine or copy electronic data; and
(e) use or cause to be used any copying equipment at the place to make copies of any document.
The Act places an obligation on every owner of a place, a person in charge of the place and everyone in the place to give all assistance that is “reasonably required” by the designated person, including providing any document or electronic data “they may reasonably require”. In addition, in 19(6), a designated person can bring anyone with them to assist.
This is not specifically limited to places in Canada, but likely cannot be enforced outside of Canada. Again, this is completely without limits. The designated person can say “I want your entire customer database” and the ESP ostensibly needs to comply. Even more, it would be illegal for an employee there to not assist with this outrageous demand.
Audit orders
Under s. 21, a designated person can order an electronic service provider to conduct an internal audit “of its practices, documents and electronic data to determine whether it is in compliance with any provision of this Act or the regulations.” A copy of the audit must be provided to the designated person, and if the audit uncovers any non-compliance, it must specify the non-compliance and measures taken or to be taken to comply with the relevant provision or order.
Orders by designated persons
The Act, at s. 23, gives the designated persons order-making powers. If they believe “on reasonable grounds that there is or is likely to be a contravention of the Act or regulations, they can issue a written, mandatory order requiring an electronic service provider to:
(a) stop doing something that is or is likely to be in contravention of that provision or cause it to be stopped; or
(b) take any measure that is necessary to comply with the requirements of that provision or mitigate the effects of non-compliance.
These orders are subject to review by the Minister, on request of the electronic service provider. Unless otherwise ordered by the Minister, the order issued by the designated person must be complied with.
Administrative monetary penalties and offences
The Act, at s. 27 et seq, provides for a full administrative monetary penalty (AMP) regime that is intended to “promote compliance with this Act and not to punish”, along with penal offences at s. 40 et seq.
If a contravention results in an AMP, the penalty can be up to CAD $250,000, and if a violation continues more than one day, each day constitutes an additional violation. The due diligence defence is available, as are common law defences.
The Act provides for liability by corporate “directors, officers or agents or mandataries who directed, authorized, assented to, acquiesced in or participated in the commission of the violation”. A notice of violation will set out the amount of the AMP, which can be simply paid, which amounts to an admission of the violation. Alternatively, the alleged violator can enter into a compliance agreement with the Minister or request a review by the Minister of the acts or omissions that constitute the alleged violation, or the amount of the penalty.
In a review by the Minister for a violation, the evidentiary standard is balance of probabilities and there is no prescribed appeal from the Minister’s decision. Judicial review would likely be available in the Federal Court of Canada.
Violations can also be penal offences, which are summary conviction offences with a maximum fine of $500,000. If a violation continues more than one day, each day constitutes an additional violation. As with AMPs, due diligence is a defence and officers/directors can also be convicted if they “directed, authorized, assented to, acquiesced in or participated in the commission of the offence”. It is also an offence to obstruct or make a false or misleading statement to (a) a person authorized to assess or test any device, equipment or other thing, or (b) a designated enforcement person.
In a nutshell, this part of Bill C-2 has enormous impacts on electronic service providers – globally – and represents a huge overreach with enormous power and discretion given to the Minister and “designated persons”. It has the potential to introduce significant vulnerabilities into the systems we use every day for our most private communications and also may completely upend the practice of information sharing that is the foundation for keeping the internet safe and secure.
This “Supporting Authorized Access to Information Act” should be taken out of Bill C-2 so it can get the attention, discussion and scrutiny it deserves. I am really, really afraid that it’ll be jammed through Parliament under the guise of strengthening our border to appease the current US government. And we know that once governments get powers, they never surrender them.
