Canada’s new border bill sparks outcry over hidden surveillance powers

• The Strong Border Act, introduced by the Canadian government, includes provisions allowing law enforcement to obtain subscriber information without a warrant, measures critics say have nothing to do with border security.
• These surveillance provisions echo long-defeated efforts by authorities to gain warrantless access to digital data, despite repeated pushback from courts, Parliament and the public.
• The bill allows police to compel telecom providers to confirm user information and data locations without court approval, based only on suspicion that a crime may occur.
• Experts argue Bill C-2 sidesteps Supreme Court rulings, R. v. Spencer (2014) and Bykovets (2023), which affirmed Canadians’ privacy rights and required warrants for such digital data access.
• Critics say the surveillance clauses were deliberately hidden in a border-focused bill to avoid scrutiny, using national security as cover for controversial digital privacy rollbacks.

A new piece of federal legislation, introduced by the Canadian government, is drawing sharp criticism from privacy advocates and legal scholars who warn that the bill conceals sweeping new surveillance powers unrelated to border security.

The Strong Border Act (Bill C-2), touted by the government as a necessary measure to “enhance the integrity of Canada’s borders,” buries provisions that would grant law enforcement expanded authority to obtain subscriber information from telecommunications service providers without the need for a warrant.

These provisions echo long-standing efforts by police and intelligence agencies to revive the so-called “lawful access” agenda, which seeks to give authorities easier access to digital information. The tactic of embedding them in a border-security bill is a calculated move to sidestep public scrutiny and legislative resistance.

One of the most controversial aspects of Bill C-2 is a clause permitting law enforcement to issue “information demands” to service providers. These demands would compel providers to confirm whether they offer services to specific users, whether they retain related transmission data and where those services were accessed without judicial authorization.

The bar for issuing such demands is low. Authorities need only suspect that a crime may have occurred and that the information might assist an investigation. While the demands do not compel disclosure of the data itself, they provide a roadmap to it, effectively enabling police to map out where personal digital records reside.

“The key takeaway is that Bill C-2 is far from just a border bill. The government and law enforcement are running back the warrantless access playbook by inserting extensive lawful access provisions in an unrelated bill. This approach should be roundly rejected. If there is a case for lawful access, it should be debated on its own merits, in its own bill and with its own study,” Michael Geist, a law professor at the University of Ottawa, wrote in his blog titled, “Privacy At Risk: Government Buries Lawful Access Provisions in New Border Bill.”

Adding to the controversy is the fact that the surveillance provisions bear no clear relation to the bill’s stated purpose of strengthening border security. Critics argue that by including them in a national security context, the government is engaging in legislative sleight of hand, using the urgency of border enforcement to push through unrelated measures.

“Notably, none of these measures relate directly to border enforcement. Their presence in a border bill serves a strategic purpose: to avoid the scrutiny that such provisions would attract if introduced through standalone legislation. This tactic, often seen in omnibus bills or unrelated amendments, allows controversial policies to advance quietly under the cover of more palatable reforms,” Ken Macon wrote in his article for Reclaim the Net.

Bill C-2 most likely to challenge past rulings related to surveillance

The surveillance powers proposed in Bill C-2 are not new. Since the late 1990s, law enforcement agencies have pushed for greater access to subscriber data, often through bills that failed in the face of public backlash or constitutional challenges.

In 2010, the Harper government introduced legislation requiring telecom providers to hand over customer data, such as IP addresses and device identifiers, without a warrant. The bill was ultimately dropped. A 2014 bill, presented under the guise of anti-cyberbullying efforts, tried again but met the same fate.

The turning point came later that year when the Supreme Court of Canada issued a landmark ruling in R. v. Spencer. The Court affirmed that Canadians have a “reasonable expectation of privacy” in their subscriber data, meaning police must obtain a warrant before accessing it. The ruling was further strengthened in 2023 by the Bykovets decision, which extended those protections to IP addresses. (Related: Trudeau plans to continue immigration policies despite admitting they have caused decline in wages, housing crisis in Canada.)

Despite these precedents, Bill C-2 appears to challenge the spirit and possibly the letter of those rulings.

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Sources include:

ReclaimtheNet.org

MichaelGeist.ca

Brighteon.com