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 Act would:
- 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 marked.
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.