Canadian COMPETITION LAW

Given the controversy lately about the recently introduced federal Internet surveillance legislation (Bill C-30, the Protecting Children from Internet Predators Act), including commentary on changes to the Competition Act, I thought I would take a closer look to see what all the fuss has been about.

The Minister of Public Safety, Vic Toews, introduced Bill C-30 on February 14, 2012 and it passed first reading but has since stalled based on criticism from the public, academics and Liberals (see for example: Conservative Lawful Access Bill has Serious Implications for Canadians’ Privacy, Liberals Call on Government to Protect the Privacy of All Canadians, Liberals Launch Petition and Amendments to Government Snooping Bill, How to Fix Canada’s Online Surveillance Bill: A 12 Step To-Do List, C-30 orders called “draconian” and Ottawa hits pause on Web surveillance act).

Bill C-30 would, if passed, give enforcement authorities, including the Competition Bureau, enhanced powers to monitor Internet communications and obtain Internet user information – for example, requiring telecom providers to establish and maintain measures to enable the interception of transmitted information and provide basic subscriber information to the RCMP, Canada’s intelligence body (CSIS), the Competition Bureau or the police.

Bill C-30 would also amend the wiretap and warrant provisions of the Criminal Code and add new investigative powers relating to computer crime and use of emerging technologies for crimes.

With respect to the Competition Act, Bill C-30 would, if passed, amend the Act to incorporate the proposed Criminal Code provisions relating to demands and orders for the preservation of computer data (and orders for the production of documents relating to the transmission of communications or financial data).  Some of the specific proposed changes to the Competition Act include:

Expanding the definition of “record”.  The definition of “record” in subsection 2(2) of the Competition Act would be amended (and expanded) to include any “medium on which information is registered or marked”.

Adding new media definitions.  A number of new media definitions would be added to the Competition Act.

Expanding the Commissioner’s document production powers.  Proposed Criminal Code preservation demand and order provisions for the preservation and production of data would be incorporated into the deceptive marketing (Part VII.1) and civil reviewable practices (Part VIII) provisions of the Competition Act.  These would expand the Commissioner of Competition’s powers to obtain document production orders and also give her the power to obtain orders compelling financial institutions to produce account and related information on an ex parte basis.  Interestingly, these new proposed powers for the Commissioner would be available regardless of whether the Bureau has commenced an inquiry, which is a condition for the Bureau to exercise some of its existing enforcement powers – for example, applying for document production orders under section 11 of the Act (so-called “section 11 orders”).

Allowing the Commissioner to compel telecom providers to disclose subscriber information.  Designated officials, including the Commissioner of Competition, would have the power to compel telecom service providers to disclose subscribers’ personal information, including their name, address, telephone number and e-mail and IP addresses.

Expanding the computer search provisions of the Competition Act.  The existing computer search provisions of the Act (section 16) would be expanded to give Canadian courts additional powers to issue warrants for enforcement officials to use electronic devices that would, had it not been authorized, constitute an unreasonable search or seizure (presumably an attempted prophylactic measure against possible Constitutional challenges).

Amend the Mutual Legal Assistance in Criminal Matters Act (“MLACMA”).  Bill C-30 would also amend the MLACMA to make some of the proposed Criminal Code investigative powers available to Canadian enforcement authorities executing incoming requests for assistance and allow the Commissioner to execute search warrants under the MLACMA.

Whether Bill C-30 is resuscitated or shelved remains to be seen. It will be interesting to see whether the Government will listen to privacy and Constitutional advocates and revise the Bill.

For a copy of Bill C-30 see:

Protecting Children from Internet Predators Act

For the executive summary of Bill C-30 see:

Executive Summary

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