Systematic government access to private-sector data in Canada

In Canada, information privacy is implicitly constitutionally protected by the Charter of Rights and Freedoms (the Charter), as well as by provincial, territorial, and federal privacy statutes that regulate the collection, use, retention, and disclosure of personal information. The Privacy Act (PA) regulates federal government institutions' relationship with personal information, while private sector organizations' relationship with personal information is regulated by the federal Personal Information and Protection of Electronic Documents Act (PIPEDA) or by any substantially similar legislation promulgated in the province in which the private entity operates. These protections, however, are subject to numerous exceptions that allow information sharing between government entities and between private sector and state entities. Statutes enabling law enforcement access to personal information generally require prior authorization (subject to numerous exceptions). Domestic law enforcement agencies obtain prior authorization under the Criminal Code, while Canada's primary national security intelligence gathering agencies, the Communications Security Establishment of Canada (CSEC) and the Canadian Security Intelligence Service (CSIS) are subject to more relaxed provisions in their respective enabling statutes. While CSEC's capacity to intentionally conduct surveillance over communications in Canada without Ministerial authorization is limited, the agency continuously operates surveillance over foreign signals intelligence through Echelon, in cooperation with other signatories to the UK–USA Security Agreement. National security concerns have also led to laws requiring certain private sector entities to gather and disclose personal information about their clients to government agencies in relation to large financial transactions and air travel, as well as to increased impetus for information sharing between law enforcement and intelligence agencies. Although CSEC has ongoing access to communications outside of Canada, Canadian law enforcement agents' access to data outside of the jurisdiction generally arises from formal and informal networks, as well as to requests for assistance from partners under Mutual Legal Assistance Treaties (MLAT). The Office of the Privacy Commissioner of Canada (OPC) and its provincial and territorial counterparts play an active role in informing Canadians about informational privacy issues, including transborder flows of Canadians' personal information. With the 2012 announcement of Canada's first anti-terrorism strategy and the introduction of Bill C-30 in Parliament, Canadians are deeply involved in debate regarding expanded government access to personal information. As currently structured, Bill C-30 would, inter alia, mandate telecommunications service providers (TSPs) to disclose to designated state agents certain personal information that is currently only subject to voluntary disclosure, require TSPs to ensure their technical infrastructures are intercept compatible, allow ‘inspectors’ warrantless access to TSPs' facilities, and provide civil and criminal immunity for TSPs who voluntarily retain data for and/or produce data to the state if it would be otherwise lawful for them to do so, while also broadening judicial powers to issue production and retention orders.

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