Canadian Government Quietly Drops Lawful Access From Its Cyber-Security Strategy

By Michael Geist

Jesse Brown had an interesting post  yesterday that raised concerns about the prospect that the government might use mounting fears over cyber-bullying to re-start their failed lawful access legislation. While it is important to remain vigilant about the possibility of the re-emergence of Internet surveillance legislation, I think a more important signal suggests the bill really is dead (at least until after the 2015 election).

First, Bill C-30 actually did include a provision that could arguably be used to help address cyber-bullying. It wasn’t the provisions involving privacy and surveillance, but rather the expansion of a Criminal Code provision on harassment. Section 372(3) currently provides:


Every one who, without lawful excuse and with intent to harass any person, makes or causes to be made repeated telephone calls to that person is guilty of an offence punishable on summary conviction.


The limitation to harassing phone calls would seemingly exclude instances of cyber-bullying. Bill C-30 would have made provision technology neutral:


Everyone commits an offence who, without lawful excuse and with intent to harass a person, repeatedly communicates, or causes repeated communications to be made, with them by a means of telecommunication.


It is therefore possible that we could see this provision re-surface without bringing back the surveillance provisions that raised concern across the country.


More notably, the government recently dropped lawful access from its national cyber-security strategy. The 2010 Cyber-Security Strategy telegraphed the intent to bring forward lawful access legislation with a commitment to introduce a bill:


  • Requiring Internet service providers to maintain intercept capable systems, so that law enforcement agencies can execute judicially authorized interceptions;
  • Requiring Internet service providers to provide police with basic customer identification data, as this information is essential to combatting online crimes that occur in real time, such as child sexual abuse


Yet earlier this month, the government released its Action Plan 2010-2015 for the Cyber-Security Strategy.  It removed all references related to lawful access including the commitment to legislation involving Internet service providers. Given that the document originates with Public Safety – the most ardent supporter of lawful access within the government – the removal of surveillance language provides a strong signal that it is not part of the legislative plan for the foreseeable future.

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