Amid rapidly shifting geopolitical sands, Canada and the United States on Wednesday unveiled plans to work more closely in the nebulous world of cybersecurity, including on a long-awaited agreement to ease navigation of respective privacy laws. confidentiality of data in criminal investigations.

A detailed suite of common cross-border common interests, including cybercrime, human trafficking and illegal arms trafficking, emerged overnight from the new Cross-Border Crime Forum, a bilateral gathering inaugurated in 1997 but inactive since 2012.

Public Safety Minister Marco Mendicino and Justice Minister David Lametti were in the U.S. capital for the meetings, the centerpiece of which was the start of formal talks to bring Canada under the umbrella of the Clarifying Lawful Overseas Use of Data Act, or CLOUD.

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Reaching an agreement “would pave the way for more effective cross-border disclosures of data between the United States and Canada so that our governments can more effectively combat serious crimes, including terrorism,” the attorney general said. of the United States, Merrick Garland, in a press release.

The overarching goal, Garland said, would be to improve public safety in both countries while protecting the privacy and civil liberties of Americans and Canadians.

“By increasing the efficiency of the investigation and prosecution of serious crimes…we seek to improve the safety and security of citizens on both sides of the Canada-US border.”

The CLOUD Act, passed in 2018, created a “new paradigm,” according to the US Department of Justice: “an effective approach, respectful of privacy and civil liberties, to ensure effective access to electronic information through executive agreements between the United States and trust companies. foreign partners.


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Such agreements are designed to remove legal “barriers” that prevent internet service providers subject to US law from disclosing electronic evidence upon court order. The United States already has CLOUD agreements with Australia and the United Kingdom. Other jurisdictions with strict privacy rules, such as the European Union, disagree with the DOJ’s approach.

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The United States has reportedly complained to Ottawa that Canadian privacy laws may prevent US authorities from notifying their US counterparts when convicted sex offenders travel south, even though similar information is routinely shared in the other direction.

Law enforcement officials in Canada have also pressed the federal government for years to enter into data-sharing treaties with the United States that would make it easier for investigators in both countries to pursue arrests and convictions for various criminal offences.

The Cross-Border Crime Forum, reinvigorated under the bilateral “road map” for cooperation agreed in February 2021 by Prime Minister Justin Trudeau and President Joe Biden, finally appears to have opened the door.


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And it’s not too soon, said Karen Eltis, a law professor at the University of Ottawa who specializes in privacy law, e-commerce and cybercrime, as well as the myriad issues surrounding nature. unlimited geopolitics of the Internet.

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The sheer volume of online communications and commerce these days demands a different approach to combating criminal activity that leaves its digital breadcrumbs – critical evidence for investigators – everywhere, especially in the United States. United, said Eltis.

“In the past, it was all about territorial boundaries,” she said. “We need to understand that the kind of laws we were used to, which were confined to a particular territory, are no longer relevant in the digital age.”

Privacy concerns are legitimate and an important part of the discussion, she added. But it’s high time the debate confronted the reality of how the internet works, especially given the threat of international cyberattacks, which is growing exponentially in light of Russia’s invasion of Ukraine.

A summary of the meeting released Wednesday said Mendicino, Lametti, Garland and Homeland Security Secretary Alejandro Mayorkas also discussed working together to defend against ransomware attacks and to “freeze and seize” Russian assets. as part of the North American economic countermeasures against Russia and President Vladimir Putin. .

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Foreign policy experts have been warning for weeks that US efforts to sanction Russia would likely lead to increased foreign cyberattacks on US infrastructure, a possibility Biden himself flagged publicly on Monday.

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“My administration has issued new warnings that, based on evolving intelligence, Russia may be planning a cyberattack against us,” Biden told the business leaders. “The scale of Russia’s cyber capability is quite substantial, and it’s coming.”

This threat adds another wrinkle: In autocratic countries, privacy laws are less restrictive against cybermeasures than they are in the West, Eltis added, quoting the words of one of his mentors. , the former president of the Israeli Supreme Court Ahamon Barak.

“He said, ‘Democracy fights with one hand tied behind its back, but it still has the upper hand,'” Eltis said.

“A democracy has values ​​that it preserves, even if it will have to maneuver within constraints. It’s not just about privacy – not because privacy isn’t important, but there are many other human rights that can be at stake, which democracies need to circumvent and find a fair balance.

The four leaders also spoke about efforts to combat human trafficking and smuggling across the Canada-US border, as well as plans to target the flow of illegal weapons between the two countries.

This report from The Canadian Press was first published on March 23, 2022.

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