Lawful Access & Encryption in Canada: A Policy Framework Proposal

Abstract

Encryption is vital to the security of modern information systems. However, at the same time encryption protects legitimate online activities, it also shields online criminal activity. In a growing number of cases, law enforcement is legally authorized to access data stored or sent from a particular device but encryption blocks access. In response to this problem, some countries and public safety agencies have proposed laws that would require service providers to insert “backdoors” into their communication systems to allow police access when legally authorized. Backdoors raise significant privacy and security concerns and this paper generally resists the mandatory access approach to the encryption problem. Instead, this paper suggests that the encryption debate is more usefully advanced from discussions about whether governments should weaken encryption to discussions about how to assist law enforcement in working around encryption as the technology becomes more ubiquitous. Consequently, this paper proposes an encryption workaround implementation guide for Canadian law enforcement agencies. The guide aims to offer investigators sufficient direction so that encryption workarounds do not unduly infringe privacy rights, as developed in Charter section 8 jurisprudence, but also sufficient flexibility to achieve important law enforcement objectives.