Why isn’t Canada prosecuting intellectual property crime?

OTTAWA—The notion that criminal theft of intellectual property hurts our national prosperity has become a regular talking point in Canadian national security circles. And that's just what it is: a regular talking point. Apart from the rhetoric about this problem, we do not seem to be intent on prosecuting it. Canadian Security Intelligence Service director David Vigneault has commented that economic espionage—which consists primarily of theft of soft IP like trade secrets—is “the greatest threat to our prosperity and national interest." This notion also surfaces throughout the federal government’s new array of glossy cyber policy documents, including its National Cyber Security Strategy, National Cyber Security Action Plan: 2019-2024, and the recent International Cyber Policy. But none of these documents mention prosecution—and Canada's record on enforcement and prosecution is extremely weak. Compare this approach to the American one. Since theft of trade secrets was made a federal crime in 1997, the U.S. has seen a "spike" in criminal charges for IP theft being brought forward by the government. This trend accelerated after the Obama administration's publication of its Strategy to Mitigate the Theft of U.S. Trade Secrets and the Trump administration's announcement of the China Initiative. The latter targeted investigation and enforcement resources on China—a focus born from the fact that 80 per cent of all U.S. economic espionage cases have a connection to that country. By comparison, tellingly, the Public Prosecution Service of Canada—the branch of the Canadian federal government which prosecutes offences on behalf of the Government of Canada—does not have a section devoted to IP theft. It addresses these issues under its regulatory and economic prosecutions arm, not its national security one. There is also not a single attorney or other professional in the Department of Justice or the Public Prosecution Service of Canada who has criminal theft of IP as an express part of their job mandate either on a full-time or part-time basis. These facts suggest Canada is doing little to match the efforts of its allies. For example, the U.S. Department of Justice has a dedicated Computer Crime and Intellectual Property Section, devoted exclusively to investigating and prosecuting crimes in this area. It is a 40-attorney strong unit, with a mandate to “advise federal prosecutors and law enforcement agents; comment upon and propose legislation; coordinate international efforts to combat computer crime; litigate cases; and train all law enforcement groups." The U.K.’s Crown Prosecution Service also has dozens of full-time solicitors addressing such cases. In Australia, the Federal Prosecution Service has an entire team devoted to cybercrime. Canada has nothing comparable. These shortcomings contribute to other facts that make Canada look weak on prosecuting IP crime. Although the RCMP has recently stepped up its investigation game by assessing possible intellectual property theft from Canada’s top-security infectious disease laboratory, it has notoriously also experienced major setbacks. These include the revelation the director general of the RCMP Intelligence Unit was arrested for selling sensitive intelligence. Similarly, the oversight agency for Canada's intelligence agencies was recently hacked. Other facts paint the same story of lacklustre Canadian efforts at investigation and prosecution. For example, the Ministry of Innovation, Science, and Industry has a $5-billion budget and administers funds that include $300-million for Canada research chairs, $400-million for the Social Sciences and Humanities Research Council, and $1.1-billion for the Natural Sciences and Engineering Research Council. However, based on an access-to-information request, it appears the ministry has not conducted any briefing whatsoever to the responsible minister on the threats "concerning the protection of Canadian intellectual property from foreign actors." Several key provisions of the Criminal Code which could forestall the theft of IP have never even been used for that purpose. For example, the Government of Canada has never brought forth charges under Criminal Code Sec. 342.1 (“unauthorized use of a computer”) explicitly for IP theft, despite having it on the books since 2014. The new law prohibiting theft of trade secrets, Sec. 391 of the Criminal Code, is destined to become a similar nullity if steps are not taken to develop actionable enforcement strategies. By comparison, the U.S. Department of Justice has taken an aggressive stance in prosecuting criminal theft of IP, linking such theft with national security in its regular updates about new charges being laid. The U.S. has also run an Intellectual Property Attaché Program for years, has a national strategy on the mitigation of trade secret theft, and is aggressive about protecting its IP with trade secrets. In fact, this is how Canada got its criminal trade secret law mentioned above—as part of the negotiations through CUSMA, which the United States trade representative bragged about imposing on Canada. If Canada wants to be seen as a credible ally—and not a figure on the U.S. trade representative's Sec. 301 “watchlist” of countries with poor IP laws and enforcement, as it currently is—it needs to understand these American attitudes and actions, and it must execute adequate enforcement measures. In addition to addressing investigation and prosecution shortcomings, law enforcement needs to signal the kind of information that can help it carry out enforcement efforts, in particular by developing tools like reporting checklists for victims of IP theft, so that victims can get helpful information to law enforcement in a timely manner. Criminal IP theft has already been identified as a genuine threat to Canada and its businesses. This is especially the case when there is a nexus with state-sponsored economic espionage. But beyond giving this notion lip service, it is time for Canada to start investigating and prosecuting it, too. Matt Malone is a research associate at the Centre for Law, Technology, and Society at the University of Ottawa. The Hill Times