Canada: Cloud Computing And The USA Patriot Act: Canadian Implications

A perennial issue in Canadian privacy law is what to do about the USA Patriot Act. Just when we think we have things reasonably sorted out, issues pop up again in a new context. This time, it is cloud computing.

What is the USA Patriot Act?

The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act 1 (usually referred to as the USA Patriot Act or just the Patriot Act) is United States legislation that was passed following the September 11, 2001, attacks on the World Trade Centre in New York City. Among other things, the Patriot Act made it easier for U.S. law enforcement officials to intercept electronic communications and business records. One of the controversial measures was that officials were granted the power to issue a National Security Letter to electronic communication service providers requiring them to hand over information without informing the affected parties (in some cases without any judicial oversight).

For the purposes of this discussion of cloud computing, one of the most important provisions of the Patriot Act is s. 215, which deals with access to business records. Section 215 repealed and re-enacted provisions of the U.S. Foreign Intelligence Surveillance Act.2 Pursuant to s. 215 of the Patriot Act, the Federal Bureau of Investigation may apply to a federal judge for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities. U.S. commentators agree that this definition covers electronic business records.

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