Chapter 4: Government Response — The Government’s Response to Lawful Access Challenges — Early Efforts
Special Report on the Lawful Access to Communications by Security and Intelligence Organizations

The Government’s Response to Lawful Access Challenges

Early Efforts

133. The government’s response to lawful access policy issues predates the period under review. In 1998, the government published its cryptography policy for electronic commerce, which acknowledged potential challenges for law enforcement, but supported strong encryption as essential to economic prosperity and the digital economy. ^{Footnote 303}

134. In 1999, the government established the Lawful Access Initiative, whose goal was to “implement a strategic framework” to assist law enforcement (RCMP and non-federal police services) and national security agencies (CSIS and CSE) “in maintaining lawful access to information and communications.” ^{Footnote 304} Led by Public Safety, the initiative also involves CSE, CSIS, DoJ, Innovation, Science and Economic Development Canada, PPSC, and the RCMP. The government initially funded the initiative for five years at $*** annually, and provided ongoing funding of $*** from 2005 to the present day. The initiative provides CSIS and the RCMP with funding for intercept solutions at CSPs, processing and analysis, and *** techniques. ^{Footnote 305}

135. Efforts by the government to modernize lawful access legislation for the digital age began in earnest following Canada’s signature in November 2001 of the Council of Europe’s Budapest Convention on Cybercrime (Budapest Convention), a multilateral agreement which committed the government to create new Criminal Code powers specific to electronic evidence, including specialized production orders. ^{Footnote 306} Between 2001 and 2004, the government held several public consultations on lawful access issues to inform legislative proposals. Between 2005 and 2012, the government tabled seven bills in an effort to update Canada’s lawful access legislation. All died on the Order Paper following the dissolution or prorogation of Parliament. None became law. See Annex E.

136. The bills attracted criticism from privacy advocates, cybersecurity experts, and CSPs, ^{Footnote 307} which stated the government had not provided sufficient evidence of the problem, had not explained why existing authorities were insufficient, and could not say how much the initiative would cost. ^{Footnote 308} In particular, cybersecurity experts and privacy advocates were concerned about any attempt to legally require the introduction of weaknesses in encryption by requiring “backdoors” for law enforcement and security agencies, in part because such weaknesses could also be used by nefarious actors. ^{Footnote 309}