International Law

Atlantic Canadian RCMP say search warrants are a time consuming hurdle

By David T.S. Fraser

The Royal Canadian Mounted Police in Atlantic Canada are complaining that the two major internet service providers in the region are requiring that police get a warrant before handing over customer information. The ISPs are of the view (correctly in my opinion) that the Personal Information Protection and Electronic Documents Act prevents them from disclosing subscriber information without a warrant.

CBC: Search warrants for child porn too slow, say RCMP

Child pornography investigations in Atlantic Canada are being held up by internet service providers who require search warrants before providing customer information, say RCMP.

In some parts of Canada, internet service providers will hand over information such as the name, address and phone number of a customer being investigated by police.

Const. Blair Ross, who works on child pornography cases on P.E.I., told CBC News Tuesday RCMP are short-staffed already, and getting a search warrant can take days or even weeks.

"As it stands here now in Atlantic Canada, the internet providers will not provide that unless we obtain judicial authorization, in other words, a warrant," said Ross.

"So before we even begin to investigate we have that hurdle to jump over, which is time consuming."

Protecting customer privacy

But the region's two main internet companies say they are concerned about customer privacy, and particularly legislation they are required to operate under. Both Aliant and Eastlink say if someone is in imminent danger the company will provide its customers' information right away, but most of the time police must have a warrant. Eastlink spokeswoman Paula Sibley said her company is aware some other Canadian ISPs require only a letter of request from police.

"We're not necessarily opposed to seeing things move in that direction," said Sibley.

"However, with the existing legislation that's in place, and also privacy legislation that we have to operate under, we've chosen to continue to ask for a warrant." Ross said RCMP could spend more time finding people involved with child pornography if ISPs provided information more quickly.

Then there's also the issue of the Canadian Charter of Rights and Freedoms, which at least in a recent case from Ontario, prevents law enforcement from using the information if it was obtained without a warrant. (See yesterday's post: Canadian Privacy Law Blog: Ontario Court considers warrantless requests for subscriber information.)

From my understanding of how child exploitation and child pornography investigations are usually carried out, the first contact with a suspected offender yields more than enough information to get a warrant. In R. v. Kwok (referred to in Ontario Court considers warrantless requests for subscriber information), the defendant sent the police officer photos that were clearly child pornography. There was no suggestion that the defendant was currently abusing a child, so no exigent circumstances existed. Had a warrant been sought, I have no doubt it would have been issued in that case. That information would probably have been enough to secure the ultimate conviction of the offender.

I have a serious concern with the following statement:

"So before we even begin to investigate we have that hurdle to jump over, which is time consuming."

To begin with, the Charter is not a "hurdle". It's there for a reason and that reason isn't to make life more convenient for agents of the state to get into people's personal information. And secondly, this suggests the police are looking for personal information before they begin an investigation. I appreciate the importance of investigations of this type, but it seems they should always have reasonable grounds to believe an offence has taken place and that the information they are seeking will lead to the identity of the offender before seeking personal information. The alternative is an unacceptable fishing expedition.

Note: The above are my own opinions and not those of any organization I may be associated with or represent.

Full post as published by The Canadian Privacy Law Blog on April 02, 2008 (boomark / email).