Law Times

Page 8 May 16, 2016 • Law TiMes www.lawtimesnews.com Data doesn't have borders BY MARG. BRUINEMAN For Law Times W hat happens to data being stored in Canada and whether it can be accessed by foreign law en- forcement agencies is a question Canadian courts are currently grappling with. Two decisions — one in On- tario, the other in British Co- lumbia — have determined that information held in servers in Canada can't be shielded for re- view by American investigators. But the Ontario Court of Appeal has decided to re-examine one of those cases. "ese are important issues not only for this case, but for future cases as well, in which no doubt many issues will arise out of the seizure of digitally stored information and data, not only regarding jurisdiction, but also the mechanics of safeguarding the privacy and security of such information and data," wrote Justice Kathryn N. Feldman in granting appeal in United States of America v. Equinix Inc. in February. Scott Hutchison, who repre- sented Equinix and Megaupload in the Ontario Superior Court of Justice, says legislation to address these specific concerns is neces- sary; until then, however, the di- rection will be le to the courts to forge. Hutchison, who has a liti- gation practice with Henein Hutchison LLP in Toronto where he focuses on regulatory and ad- ministrative law, says the issue has become increasingly signifi- cant over the past five years with the explosion of cloud storage use for digital information. "e problem, of course, is data doesn't respect borders, but the way we've organized our so- cieties, government, and law is border-driven," he says. "e concern is that not all countries have the same appre- ciation of privacy, not all coun- tries respect the notion that the individual has the right to con- trol what is disseminated to the state, and not all countries use information the way we would consider appropriate." Equinix and United States of America v. Bin involve massive amounts of data being sought by officials in the United States. In Bin, the RCMP seized digital devices and media that exceeded 300,000 pages from Vancouver businessman Su Bin under the Mutual Legal Assis- tance in Criminal Matters Act. e act accommodates mu- tual legal assistance in criminal matters between Canada and other countries. U.S. authorities accused Bin of hacking into U.S. computers to steal sensitive technical infor- mation about the F-35 and F-22 military aircra by conspiring with two members of the Chi- nese military. And they sought his extradition to the U.S. But much of the material they expected was correspondence be- tween Bin and the Chinese men was in simplified Chinese char- acters, which the RCMP did not have the resources to translate. at restricted its ability to fulfil its obligation under the act to help the U.S authorities by reviewing the material that had been seized and preparing a re- port before a judge could issue a sending order. e British Columbia At- torney General successfully requested that the British Co- lumbia Supreme Court permit an FBI "clean team" to help with the translation of the documents. Bin's lawyer argued that once that information was transferred to the U.S., the Canadian courts would lose control over how that information was used. In Equinix, the Attorney General of Canada applied for an order to allow a team of Ameri- can investigators to examine 32 computer servers seized in Can- ada and asked that the American team create the report to outline the data stored on the servers. In that case, Justice Michael Quigley found that at the core of the application was balanc- ing the privacy rights of Cana- dians with Canada's interna- tional obligations. He allowed the American in- vestigators to examine the serv- ers as long as they submitted a copy to him prior to applying for a sending order of the data. Maanit Zemel, a litigator who focuses on Internet issues through her boutique firm MTZ Law, says the recent decisions show that if it's in the cloud, there is always a possibility that digital data could be accessed by authorities here or elsewhere. "It is an indication that it does not necessarily matter where you store your informa- tion, the law has a long reach, and yes, you are still entitled to constitutional protections. But the fact that the informa- tion is located in the cloud does not, in and of itself, safeguard you from having to produce that information to law enforcement agencies," says Zemel. e situation is complicated by the rapid pace of technology. Every time the law catches up with technology, technology continues to advance. So it's a constantly moving target. e idea behind cloud tech- nology is that it's supposed to be everywhere and nowhere all at once, adds Kirsten ompson, lead of the cybersecurity, priva- cy, and data protection group at McCarthy Tétrault LLP. But the servers that allow in- formation to go onto the cloud do reside in geographical loca- tions. And in response to de- mand, service providers have started to develop servers in Canada so the information can reside here. "is means that companies are now checker-boarding the world with servers, trying to keep ahead of the legislation and law enforcement. And as laws change, then you may have to shi your data over somewhere else," she says. LT FOCUS ON IT/Telecommunications Law Focus Kirsten Thompson says some companies are moving the geographical locations of their servers, where they store their data, to keep ahead of legislation and law enforcement. REACH ONE OF THE LARGEST LEGAL AND BUSINESS MARKETS IN CANADA! AVAILABLE ONLINE AND IN PRINT With more than 300,500 page views and 100,000 unique visitors monthly canadianlawlist.com captures your market. FOR MORE INFORMATION CONTACT Colleen Austin T: 416.649.9327 | E: colleen.austin@thomsonreuters.com www.canadianlawlist.com Get noticed by the lawyers, judges, corporate counsel, fi nance professionals and other blue chip cilents and prospects who fi nd the contacts they need for Canadian legal expertise at canadianlawlist.com with an annual Gold or Silver Enhanced listing package. ENCHANCE YOUR LISTING TODAY! Untitled-2 1 2016-04-27 3:30 PM

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