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hi my name is david fraser i'm a privacy internet and technology lawyer with the canadian law firm mcginnis cooper part of my legal practice involves advising companies when law enforcement comes knocking at the door looking for customer information i also teach internet and media law at the schulich school of law at dalhousie university in this channel i try to provide educational and informative content about canadian privacy and technology law today i'm going to be talking about the newly announced cloud act agreement negotiation process between canada and the u.s to facilitate cross-border law enforcement investigations this is just the beginning so i'll necessarily be doing some speculating about what the process will look like and what the agreement will look like i'll start with my usual disclaimer this is intended to be a relatively general overview of the law for educational and informative purposes only this is a complicated area of the law with many nuances i'll be talking about the general rules and there are always exceptions to those rules if you have any specific legal questions or if you're dealing with a situation yourself you should seek qualified legal advice and all opinions expressed in this video and on this channel are mine and mine alone and should not be attributed to my law firm or any of its clients so this week the united states department of justice announced that the governments of the united states and canada are currently negotiating an agreement under the cloud act to facilitate cross-border law enforcement investigations this is a big deal this will mean the canadian police can use canadian court orders to get evidence in the united states and american search warrants can be served on canadians it's intended to be a solution to an issue that affects law enforcement in both countries who want evidence that's on the other side of the border every country has absolute sovereignty over what happens in their territory no sovereign can do anything in another sovereign's territory without permission or invitation canadian enforcement powers end pretty abruptly at the border a criminal court can't order anyone outside of its jurisdiction to do anything including the production of records it's reciprocal foreign states can't extend their law enforcement into canada without permission or invitation as it currently stands a u.s search warrant has no effect in canada a canadian production order similarly has no effect in the united states canadian law ends at the border as does american law the criminal code as currently written does not authorize the issuance of a production order directed at a person or entity outside of canada it's important to remember that there's a big difference between civil lawsuits and criminal investigations notice i said without permission or invitation to provide that permission countries often have entered into mutual legal assistance treaties with one another if you're investigating something in our country and some evidence is in our country tell us about it and maybe we'll assist you in getting it i'll discuss this whole thing a bit more later the reality is that most reputable u.s service providers will provide information to canadian law enforcement under a canadian court order as long as they can do so without risking a violation of u.s law for example in the first half of 2021 twitter reports that it received 56 information requests from canada about 63 accounts and it complied with 45 of them during the same time meta or facebook reports it received eleven hundred legal process requests from canada and complied with eighty-two percent of the requests it received as i said a canadian production order doesn't really have any effect in the us but they generally do follow them voluntarily when they can currently a u.s privacy law called the stored communications act prevents certain service providers from providing certain categories of data except with a qualifying u.s warrant this annoys a lot of canadian investigators who have to go through the formalities under the legal assistance treaty between the two countries in order to get a u.s qualifying warrant a cloud act agreement would remove that barrier and permit most u.s companies to provide records in response to canadian orders it's reciprocal so canadian law enforcement can get court orders in canada for records that are in the custody of american service providers so what is the cloud act the cloud act or clarifying lawful overseas use of data act was enacted in 2018. at the time it got a lot of attention because it rendered moot a very high profile case in which u.s law enforcement was looking for data stored by microsoft in one of their data centers in ireland microsoft sensibly resisted the order saying that u.s law did not extend to data that was outside the u.s the case finally found its way to the supreme court of the united states but before a decision was rendered the u.s enacted the cloud act which made it clear that a u.s warrant could compel u.s companies to provide stored data for a customer or subscriber on any server they own or operate regardless of where it's located when it's demanded by a warrant the cloud act also has a mechanism to challenge the warrant if they believe the request violates the privacy rights of the foreign country where the data is stored what the cloud act also does is create a framework by which the us government can negotiate agreements with other governments for mutual recognition of the other country's legal processes subject to limitations set out in the agreement so before coming into effect the bilateral or multilateral agreement needs to be put before the u.s congress and the u.s attorney general has to certify to the congress that the partner country has robust substantive and procedural protections for privacy human rights and civil liberties the us has already negotiated such an agreement with the united kingdom and one with australia and now it's canada's turn this will be welcome news to canadian law enforcement who regularly seek evidence from u.s based technology companies but sometimes find themselves hampered by a number of bacters in fact canadian law enforcement lobbying groups like the canadian association of chiefs of police have been pushing hard to get canada to negotiate a cloud act agreement with the united states there has for some time been a mutual legal assistance treaty between canada and the u.s which provides a government-to-government pathway for law enforcement to obtain access to information in the united states it's a two-way street which similarly provides law enforcement in the united states with access to canadian data without an agreement like the mlat carrying out searches on foreign territory violates international law and sovereignty the mutual legal assistance process has been said to be cumbersome and time consuming mainly because all requests from canadian law enforcement are rooted through the department of justice in ottawa who then sends requests to the united states department of justice in washington both of these entities review the request and there's an element of discretion on the part of the receiving government as to whether or not they wish to process it and cooperate assuming that it's okay with the canadian and u.s central authorities a lawyer from the u.s department of justice seeks an order from the united states federal court that's addressed to the service provider requiring them to provide the data to the usdoj which then sends the data to the canadian doj and then to the law enforcement agency in canada a key part of this process is the review and approval by the central authorities in each country they ask does this fit within the treaty they also ask does this meet the legal thresholds is it appropriately tailored is it not too broad is it consistent with our law and values does it implicate any of our other own domestic interests canadian law enforcement generally would prefer to avoid this and have tried to do so by seeking production orders in canadian courts that name us-based service providers the canadian criminal code does not authorize the service of production orders outside canada mainly because the canadian court does not have jurisdiction over someone who's not in canada some courts will simply not issue these orders but more issuing these sorts of orders after a decision from the british columbia court of appeal called brecknell for a bunch of reasons i think the decision is wrongly decided but for more information on that you can read my case comment a link for which i'll put below in my experience most u.s service providers will provide data in response to canadian court orders but they're prohibited under u.s criminal law from providing the content of communications without a qualifying u.s warrant that can be obtained through the mlat process but a qualifying us warrant is not available from a canadian court a few years ago i was involved in a case on behalf of an american company where a canadian law enforcement agency sought and obtained a production order that would have required the u.s company to violate american law the case ultimately became moot before it went to a hearing so there's no written decision i could point you to but it was clear that the attempt to do so was out of frustration with the mutual legal assistance process and the perception of the time it takes in rally urgent orders can be turned around quite quickly and the average turnaround time is around two months the process that we have ahead likely looks like this it will take some time to negotiate the agreement between canada and the u.s it's not one-size-fits-all once the agreement is negotiated it will have to be put before the us congress a process that is at least six months and canada would have to amend a bunch of laws before it can go into effect so what would implementing a cloud act agreement look like on the canadian side of the border i'm going to be speculating because we don't have a final agreement to look at but a number of laws would probably have to be amended for example all of our privacy laws in canada prohibit the disclosure of personal information or personal health information except to comply with a warrant production order court order or where required by law currently we would read that as where required by canadian federal or provincial law or under a canadian court order complying with the u.s order would not fit within that those barriers would need to be taken down and a new law would need to be passed so that these american orders could be complied with in canada i don't think making u.s orders mandatory in canada is how it would likely play out on the us side of the border the cloud act does not make foreign orders mandatory in the u.s what it did was take down the barriers mainly in the stored communications act that prevented u.s based companies from disclosing certain categories of information in order to be truly reciprocal canadian laws would need to be amended to prevent disclosures to u.s law enforcement in response to a u.s court order or subpoena this is where i think things will get a little bit controversial in canada after all two provinces went so far as to prohibit personal information from being stored outside of canada or being accessed from outside of canada because of an overblown concern about the usa patriot act in some instances it's an offense to disclose personal information in response to a foreign demand for disclosure all that would have to change and i think that will attract some interesting responses from the privacy community in canada at the end of the day it makes sense that canadian police should be able to go to a canadian judge to get an order for access to information about canadian suspects of a crime that took place in canada it also makes sense that american police should be able to go to an american judge to get an order for access to information about american suspects for a crime that took place in the united states the cloud act agreements with the uk and australia provide some idea about what the guard rails we should hope to include in an agreement with canada first it should be limited to serious crimes and not triviality or just administrative or regulatory tribunals second it should not permit one country to investigate the citizens or residents of the other country it should be limited to canadian authorities investigating canadian crimes or american authorities investigating american crimes third there should be a mechanism by which either country gets a say for a particular request that the agreement would not apply in that instance for public policy reasons or otherwise fourth there should be a mechanism by which a company that receives a legal process is able to challenge it in their own domestic court as a final note when this progresses and we see what the agreement looks like canadians should be very careful to make sure that is not used to further the canadian so-called lawful access agenda that's been pursued for years and years by canadian law enforcement in particular canadian law enforcement have been trying to get laws amended so that they can get warrantless access to personal information we need to guard against that so it will be interesting to follow this process as it plays out i hope the government will be transparent in the processes that they engage in when it comes to negotiating this cloud act agreement and will provide canadians with a meaningful opportunity to comment on it ultimately when legislative changes get before parliament canadians will have the opportunity to testify in front of parliamentary committees and ultimately even though this is an executive agreement to be implemented in canada the legislators may in fact have the final say i hope you found this to be interesting uh and perhaps informative stay tuned as this progresses uh if this is the sort of content you find interesting uh please feel free to subscribe or you can even ring the bell and you'll be notified of any any new uh releases as they come out and of course if you have any questions or comments please leave them in the comments below and if you have any suggestions for upcoming episodes please let me know in the comments too i read them all and i reply to all of them as well thanks