Chapter 5: Assessment — Jurisdictional Barriers
Special Report on the Lawful Access to Communications by Security and Intelligence Organizations

Jurisdictional Barriers

186. The Committee learned about how the cross-border flows of digital information inhibits national security investigations, which has become especially problematic as more Canadians use communications applications and services that are based in other countries. This dynamic is not new, and Canada has taken important steps to join international efforts to address such jurisdictional barriers, such as the signing and ratification of the Budapest Convention and the more recent signing of its 2^nd Additional Protocol. Canada and the U.S have also been negotiating a Data Access Agreement under the U.S. CLOUD Act. Once concluded, this encryption-neutral agreement will remove long-standing jurisdictional barriers to judicially-authorized access to U.S. CSPs, including major social media platforms. This is particularly important for CSIS, which cannot avail itself of the mutual legal assistance process that the RCMP uses. Canada stands to gain a lot from this agreement.

187. The Committee is concerned about the length of time it is taking Canada and the U.S. to negotiate this agreement. The Committee notes that since the passage of the CLOUD Act in 2018, the U.S. has concluded agreements with the U.K. and Australia in 2019 and 2021, respectively. *** the Committee is concerned that the government may find that it missed an opportunity to finalize an agreement if the U.S. decides to prioritize other countries for Data Access Agreements.