Twisted into knots: Canada’s challenges in lawful access to encrypted communications

Abstract

This article addresses the Canadian law governing ‘lawful access’ to potentially encrypted data-in-motion; that is, communications done through electronic means. This article begins by outlining the core agencies responsible for counterterrorism investigations in Canada, and the recent public debate and government consultation on encryption. Next, we identify how older laws designed for a different era may be leveraged to force service and platform providers to assist law enforcement and the Canadian Security Intelligence Service by decrypting communications and data. We will also touch on the legal capacity of these organizations to develop their own ‘workarounds’, including the role of Canada’s signals intelligence agency, the Communications Security Establishment. Throughout, we highlight how Canada’s long-standing ‘intelligence to evidence’ problem affects and, arguably exacerbates, the encryption-prompted ‘going dark’ phenomenon and consequently impairs Canadian counterterrorism efforts. We predict legal reform resolving the ‘going dark’ issue will be impossible without modernization of Canada’s disclosure regime.