For the second time, the federal government is attempting to significantly expand the investigative powers of the Commissioner of Competition. Although described as part of an effort to prosecute online bullying and the exchange of illicit photographs, Bill C-13 (titled the Protecting Canadians from Online Crime Act), which received first reading in Canadian Parliament on November 20, would also introduce broad new powers for the Commissioner when investigating companies and individuals suspected of having contravened or engaged in reviewable conduct under the Competition Act.
The modifications to the Competition Act in Bill C-13 are very similar to those included in last year’s Bill C-30 (titled the Protecting Children from Internet Predators Act), which we described in our post last year, though provisions relating to warrantless access to internet subscriber information have been removed. Bill C-13 was roundly criticized by privacy advocates for its onerous surveillance provisions, and the federal government abandoned the bill in February, 2013.
Like its predecessor, Bill C-13 has been criticized for its expansive approach to investigative powers. The Globe and Mail reported that the bill’s cyberbullying provisions “are receiving little attention. Instead, an old controversy around [Bill C-30] is being revived.” Michael Geist also criticized the so-called “lawful access” provisions of the bill, which “encourage telecom companies and Internet providers to reveal information about their customers to law enforcement without a court order by granting them immunity from criminal or civil liability for such disclosures.”
Whether under the guise of combatting cyberbullies or internet predators, the federal government’s lawful access legislation could have serious implications for Canadian businesses. In January, the Commissioner announced his intention to make increasing use of so-called “section 11 orders” (subpoenas requiring the production of large amounts of business documents and e-mails) in both criminal and civil investigations. Combined with newly-enhanced investigative and monitoring powers, the Commissioner would have considerable ability to compel the preservation and production of confidential information not only from businesses, but also from third parties (i.e., their Internet service providers).