Canadians are cautious about using cloud computing services hosted in the States due to concerns that data stored on U.S. ground becomes subject to the u.s.a. patriot act, but lesser-known Canadian laws also provide sweeping powers to authorities, according to one privacy expert.
The Patriot Act expands law enforcement’s surveillance and investigative powers, which is an issue for Canadians, said David Fraser, partner at McInnes Cooper, a law firm based in Atlantic Canada. “The U.S.A. Patriot Act has become short for, ‘Oh, we can’t use the cloud,’” he said.
Speaking from a Canadian legal perspective on the topic of cloud computing at the Office of the Privacy Commissioner of Canada’s (OPC) 2010 Consumer Privacy Consultations in Calgary, Fraser highlighted common Patriot Act concerns.
National Security Letters are U.S. subpoenas that can require service providers or institutions to hand over information about someone’s transactions without a court order, he said. These letters don’t apply, however, to the substance within an e-mail message, he said.
Another concern is Roving Surveillance, which is a U.S. federal warrant that covers the entire country, said Fraser.
The Foreign Intelligence Surveillance Act (FISA) Court Order is a third concern. These search warrants are issued from a secret court in the U.S. for the contents of communications and are usually coupled with a gag order, he said.
But the Canada Anti-Terrorism Act (ATA), which also became law a few months after the Sept. 11, 2001 terrorist acts, amended a range of federal statutes and is very similar to the Patriot Act in the U.S., he said.
In reality, “most of the provisions of the U.S.A. Patriot Act are mirrored in Canadian law,” said Fraser.
“Canada has a ‘secret court’ that allows ex parte applications for warrants, including ‘sneak and peek’ warrants,” he said. And like the U.S., “Canada has warrant-less wiretap powers for international communications,” he said.
Secret orders from secret courts comprised of specially-designated federal court judges are allowed by the Canadian Security Intelligence Service (CSIS) Act, he said. And with the National Defense Act, a minister (as opposed to a court) can authorize interactions for the purpose of foreign intelligence, he said.
There is also “a significant degree of cooperation between law enforcement/national security agencies on both sides of the border,” said Fraser. “Canadian and U.S. intelligence agencies share vast amounts of information,” he said.