The Canadian government’s Lawful Access discussion paper fails to provide empirical – or anything beyond anecdotal – evidence that the legislative amendments proposed are actually needed. Evidence derived from U.S. law enforcement agencies suggests that technological and administrative impediments – more than legal ones – are the cause of most difficulties experienced in cybercrime investigations and prosecutions, specifically: insufficient basic record keeping by telecommunications and Internet service providers; inability to effect data preservation extraterritorially; inability to circumvent encryption; and, a lack of common data-sharing protocols. Under the guise of international obligations, the government seeks to adopt new legal investigatory tools, the effect of which would be a dilution of judicial oversight for the production of digital “traffic data” in criminal investigations. These initiatives fail to address the fact that value is inherent in all technology and must be factored into the application of laws which seek to regulate new technologies. Unlike the analog analogue, digital traffic data will often reveal a great deal about one’s lifestyle, intimate relations or political or religious opinions. Canadian courts have unequivocally found that information of this nature is subject to the highest constitutional protections, particularly in the criminal investigation context. The Lawful Access consultation paper misinterprets the Supreme Court’s standard for finding a ‘reasonable expectation of privacy’, by failing to distinguish between the nature of information contained in the various categories of traffic and the label “traffic data”, which is otherwise legally meaningless.
