Law Times

Page 12 January 26, 2015 • Law Times www.lawtimesnews.com Telecommunications companies respond to privacy dance By Judy van rhiJn For Law Times ince the Supreme Court of Canada released its decision in R. v. Spencer, t e l e c o m mu n i c a t i o n s companies have been making changes to their policies and practices and now, with the pass- ing of Bill C-13, they need to ex- amine their positions once again. The Protecting Canadians from Online Crime Act re- ceived Royal assent on Dec. 9, 2014, and will come into force in March 2015. While ostensibly about cyber bullying, the data access provisions target a range of crimes, leaving Internet ser- vice providers as the go-to or- ganizations for law enforcement requests of all kinds. David Young, of David Young Law in Toronto, notes the spotlight had been shining on warrantless access to tele- communications companies' customer information even before the Supreme Court de- cision. "As a precursor to the Spencer case, there was a report by the federal privacy commis- sioner in April 2014 which asked ISPs to report the number of law enforcement access requests and provisions of customer names and addresses. When that infor- mation hit the media, there was a lot of shock over the magni- tude of requests to telecoms." The data revealed there were 1.2 million requests for subs- criber data without a warrant in 2011. It became clear that the companies all had different policies and practices. "Some were providing the information and some were not," says Young. "Some said they would only pro- vide it if authorized by the law. Many were providing informa- tion under the Spencer rubric, giving it voluntarily to law en- forcement officers who were saying, 'We have the authority to get it anyway, so just give it to us.' They were not proceeding by way of warrant." Then Spencer came along in June 2014. The response from the telecommunications com- panies was to uniformly state that in the future they would only produce customer infor- mation in accordance with court orders. "They automati- cally all got in line," says Young. "It made availability much more narrow and rigid." Many of the companies fol- lowed up with transparency reports later in the year that they sent directly to the media. University of Ottawa Faculty of Law Prof. Michael Geist feels the transparency reports are a good first step but thinks there's more information they could cover. He also wonders about the response of law enforcement bodies. "I have a suspicion that law enforcement won't be ask- ing for voluntary disclosure. If the investigation proceeds to trial, the ability to use evidence, on the basis of the Supreme Court decision, is in peril. We could see some of them push the boundaries and ask for confir- mation of information but not disclosure." The next chapter in the story will be Bill C-13, which Young believes sets up a partial re- sponse to Spencer. "I don't think it was designed as a response but it has the same language in it," he says. When asked what the new act does to advance the ability of telecommunications companies to disclose information to law enforcement, Young points to three new legal tools that will be available under it. "Court orders can be obtained ex parte on cer- tain criteria, which makes them a proxy for a warrant or court order. There is a preservation order and a production order for which law enforcement must show reasonable grounds to sus- pect that an offence has been or will be committed under Canadian or foreign law. There is also a provision for law en- forcement, without going to court, to issue a preservation demand on a telecom, again upon the criteria of reasonable grounds to suspect." The previous power in the Criminal Code as reiterated by Spencer referred to "reasonable grounds to believe." "The procedure in the new law permits a much lower threshold than what Spencer said was necessary to comply with Charter law," says Young. "It provides greater facility to obtain production. Law en- forcement is required to say very little. Of course, once the ISP is provided with a copy obtained under the new law, they will just respond to it. Whatever the de- bate about the criteria, it is an order of the court." Geist suggests the govern- ment could still develop a new kind of warrant to appease law enforcers. "The new procedures don't change the amount of ef- fort to get them. There is still a serious process involved. For just customer name and address, law enforcement bodies will want something more lightweight than that, something on an expe- dited basis with less paperwork." There is also a provision in the new legislation that grants immunity to organizations pro- viding the information, but this hasn't been the focus of com- plaints. "It is not a blanket im- munity," says Young. "It does not supplant Spencer." Young describes the immu- nity provision as a standalone item. "What this says is that a person who preserves data or provides information in identi- fied circumstances does not in- cur any civil or criminal liability. It identifies the circumstances as the three new legal products and can also extend to when a police officer asks someone to voluntarily provide a document that it is not prohibited by law from disclosing. "It really is circular. It leads us back to Spencer. Unless you have a warrant under the Charter or one of the new orders, there is no authorization. The key language is that they are not prohibited from asking for it voluntarily, but I don't think this immunity pro- vision is going to be effective. I think R. v. 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