FBI v. Apple and beyond: Encryption in the Canadian Law of Digital Search and Seizure

Abstract

The stakes have never been higher in the arms race among tech companies, hackers and law enforcement. Tech companies are continually developing measures to enhance the digital security of their users. Hackers and law enforcement agencies, while working toward very different objectives, are themselves developing new techniques to circumvent this encryption in order to access the treasure trove of information contained in digital devices and communications services. In the USA, the fight between the FBI and Apple over the encryption of iPhones has become a flashpoint for this controversy. Tim Cook, the CEO of Apple Inc., has attracted headlines with his highly publicised challenge to court orders obtained by the FBI compelling Apple to assist in unlocking iPhones. This paper examines the implications of the FBI v. Apple dispute in the Canadian context. The authors set out the legal and policy context of the FBI v. Apple debate before exploring the legal dimensions of encryption in Canada. The authors show that the state of Canadian law is unsatisfactory. Clearer safeguards are needed to protect third parties from unduly burdensome law enforcement requests and to protect the privacy of the end users of digital devices and services.