My opinion on the topic is well known to readers of this blog (see tag: lawful authority).
Today's Hailifax Daily News has an article on the fact that the two leading ISPs in Atlantic Canada, Eastlink and Aliant, have a policy of requiring a warrant. Interestingly, the article focuses on the word "may" and not "lawful authority" in PIPEDA:
Halifax, The Daily News: Local News Police want local ISPs to loosen up to nab suspected online predatorsPolice want local ISPs to loosen up to nab suspected online predators
Crime
PAUL MCLEOD
Police in Nova Scotia are at a disadvantage compared to the rest of Canada when it comes to tracking down online sexual predators. Partly it's because of a single word in a piece of legislation.
When someone posts child pornography online, police have to go through Internet service providers - or ISPs - to get the person's name and address.
Most ISPs - over 70 per cent across the country - give police basic information without making them get a warrant. But Cpl. Dave Fox of the RCMP Internet Child Exploitation Unit said the majority of those that require warrants are in Atlantic Canada.
Both of Nova Scotia's two main providers, Aliant and EastLink, make police get warrants before handing over information. It's a process that takes a week on average, police say, and eats up desperately needed resources.
"We're not looking for shortcuts. If we took a shortcut and we were breaching someone's charter rights ... We would risk all the evidence we obtained by this warrantless searches being ruled inadmissible at trial," Fox said.
When contacted by The Daily News, Aliant said it would share information with police in emergency situations, but otherwise ask for a warrant.
"This is how we approach it. We work with them. This is what's in place in terms of our practice," said Aliant communications director Kelly Gallant.
For EastLink, the reluctance comes from the wording of the Personal Information Protection and Electronic Documents Act.
The act states ISPs "may disclose personal information" to police without a warrant.
At issue is the word "may," which some ISPs see as being too vague.
Though the federal government has endorsed pre-warrant requests as complying with the legislation, a minority of companies say handing over personal information without a warrant could expose them to lawsuits.
"The way the law is dictated today it is not clear, so we're erring on the side of the law," said Paula Sibley, communications specialist for EastLink.
"If the legislation was to be clarified, we would fully work within that."
No company has been successfully sued for handing information over to police, though there are two suits in early stages - one in Ontario and one in British Columbia.
What a frustrating article.
ReplyDeleteGetting a warrant takes a week, on average? According to whom? That just seems off to me, I've always been told it's a day at most.
The federal government has approved this process? Really? Wow, I don't recall that from Stockwell Day's statement: "We have not and we will not be proposing legislation to grant police the power to get information from Internet companies without a warrant."
Or the Privacy Commissioner's: "The assumption behind the consultation paper is that [customer name and address] information carries a low expectation of privacy and as such does not require judicial authorization. We disagree."
Anyway, I'm sure the journalist can prove show that government approval in a document that makes everything crystal clear--otherwise, they wouldn't report it, right?
And it would be interesting to see how this matches up with the view of the Nova Scotia public prosecutor who was quoted yesterday in the Chronicle-Herald: "In Nova Scotia, local Internet service providers "have been bending over backwards," to help investigate child pornography cases, said Crown attorney Craig Botterill, who estimated he has handled more than 500 child pornography prosecutions."
Anyway, I'm sure this journalist knows more about the issue than the lawyers do.