Police in Canada used to ask telecom companies to voluntarily hand over data on Canadian customers more than a million times per year. In June, the Supreme Court struck down this warrantless method as an invasion of privacy.
But while the number of warrantless requests has dropped since the decision, they have not stopped, an investigation by the Star and the Halifax Chronicle Herald has found. Key players, including the country’s largest police force and a major telecom, aren’t saying whether they still send or accept them.
Another of Canada’s “big three” telecoms, Rogers, started demanding warrants for all requests after the June ruling, known as the Spencer decision. Even after this policy change, the company continues to receive warrantless requests, according to Ken Engelhart, vice-president of regulatory affairs at Rogers.
Engelhart said the warrantless requests are only a “handful” compared to the approximately 90,000 the company fielded in 2013. But he also said that overall police requests are being made nearly as frequently as before the Spencer decision.
“People now understand that we don’t give it warrantless . . . so we’re getting a handful,” Engelhart said in an interview last week. “But we’re still getting the kind of requests we used to get without a warrant, but now they’re accompanied by a warrant.”
Warrantless requests are generally made for “basic subscriber information.” This data — such as a customer’s name, address, Internet protocol address, or telephone number — that can be used to construct a telling profile when tied to someone’s online activity.
TELUS confirmed in a statement that they also require a warrant to access such data in all but the most extreme circumstances. The company did not disclose, however, if it is still receiving warrantless requests.
The last of Canada’s “big three” telecoms, Bell, has repeatedly refused interview requests on the issue. In a one-line statement last week, the company would say only that it complies with Canadian law.
There does not seem to be consensus on whether the Supreme Court decision should apply to almost all requests.
“(The decision) specifically did not create a requirement for law enforcement to obtain judicial authorization for any and all basic subscriber information from a telecommunications service provider,” Sgt. Greg Cox, a spokesman for the RCMP, wrote in an email.
Cox wrote that the RCMP will continue to request data without a warrant in the case of emergencies — which the Supreme Court allowed — but would not clarify whether they will do so in other cases.
Federal agencies have not made up their minds on how broadly the ruling should apply. The government is still reviewing the decision “with a view to establishing a common interpretation,” according to the Canada Border Services Agency.
The debate seems to be whether the decision applies to all warrantless data requests, or only in the specific set of circumstances that were before the Supreme Court in the Spencer case.
That case centred on Matthew David Spencer, a Saskatchewan man who was charged with accessing child pornography. Police tracked him down after Shaw Communications gave them the name and address attached to Spencer’s IP address. No warrant was involved.
The top court unanimously ruled that police should not request customer information without a warrant. But Spencer’s conviction was upheld because the Supreme Court justices found police had acted in good faith at the time.
The lawyer who argued Spencer’s case said he has no doubt that the decision was clearly meant to apply very broadly.
“The fact that this was a child pornography case was almost irrelevant to the decision. The question was, ‘(Is) judicial authorization required before you could access that information?’ ” said Aaron Fox, of Saskatchewan-based McDougall Gauley LLP.
Customers are not informed when their data has been shared and most never find out unless it shows up as evidence in a court case.
“That’s the frightening part about this. They could be accessing your Internet information right now. If you’re not charged with anything . . . you’ll never know,” said Fox.
While Rogers no longer entertains warrantless requests, Engelhart said it’s up to police to judge whether trying to obtain information without a warrant could jeopardize their case.
“They need to analyze it to determine whether they are going to lose any convictions in court . . . but frankly that doesn’t affect us. We’ve decided that we won’t be providing this information without a warrant,” Engelhart said.
Original Article
Source: thestar.com/
Author: Alex Boutilier
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