Friday, October 31, 2014

Lawful access I can get behind: Missing Persons Act (NS) still in limbo

Among the many reasons put forward for "lawful access" and warrantless access to personal information is the need to obtain information in missing persons cases, where the timeliness of obtaining phone information about a missing person can be pivotal in finding a missing person. Where there is no evidence of wrong-doing, regular productions orders are unavailable because no crime is believed to have been committed.

In response to this, the Government of Nova Scotia developed a properly tailored statute to allow police to get a court-sanctioned order requiring telcos and others to provide information. The Missing Persons Act was passed, but hasn't yet been proclaimed into force. Here are the key, operative provisions:

6 (1) Upon application for a record-access order, a justice who is satisfied that access to and, where requested, copies of any of the records set out in subsection (2)
(a) may assist a police agency in locating the missing person; and

(b) are in the possession or under the control of a person,

may make an order requiring the person to provide members of a police agency access to and, where requested, copies of the records set out in the order in respect of the missing person or, where subsection (3) applies, a person who may be accompanying the missing person.

(2) A record-access order may be made in respect of

(a) records containing contact or identification information;

(b) telephone and other electronic communication records, including, without limiting the generality of the foregoing,

(i) records related to signals from a wireless device that may indicate the location of the wireless device,

(ii) cell phone records,

(iii) inbound and outbound text messaging records, and

(iv) Internet browsing-history records;

(c) global-positioning system tracking records;

(d) video records, including closed-circuit television footage;

(e) records containing employment information;

(f) records containing personal health information as defined in the Personal Health Information Act;

(g) records from a school, university or other educational institution containing attendance information;

(h) records containing travel and accommodation information;

(i) records containing financial information; and

(j) any other records specified in the order that the justice considers appropriate.

(3) Where the missing person is a minor or a vulnerable person and there are reasonable grounds to believe that the missing person may be in the company of another person, the justice may order that members of the police agency be given access to and, where requested, copies of any of the records set out in the order in respect of the person who may be accompanying the missing person.

(4) In a record-access order, the justice may impose any restrictions or limits on the records to be produced that the justice considers appropriate.

(5) The justice may include a provision in a record-access order requiring a person to provide members of the police agency with an accounting of the efforts made by the person to locate any records that cannot be found.

A recent and ongoing case in Nova Scotia highlights the necessity for legislation such as this. Despite the fact that the law isn't in force, the spouse of the missing person was authorized on his account and was able to authorize it. (See: Missing Persons Act to be proclaimed soon, says minister - Nova Scotia - CBC News).

A key learning from this is that specific problems can have specific solutions, without broadening access to private information in other cases. While the range of information accessible under the Act is remarkably broad, the limited circumstances under which the orders are available and judicial oversight prevents abuse of this access.

No comments: