OTTAWA – The RCMP is hoping the Liberal government will consider crafting a new law that would allow police to access personal information from telecom companies without first obtaining a warrant.
Investigators say a recent Supreme Court decision has significantly slowed down investigations into crimes such as child pornography – and that is putting children at risk.
“Kids could be exposed to the hands of a predator longer, before we’re able to intervene,” RCMP Assistant Commissioner Joe Oliver, who oversees the force’s technical operations, said in an interview.
The court ruled in June 2014 that police could no longer obtain what’s known as basic subscriber information from telecoms without a judicial production order or warrant.
Police say they would previously approach companies with computer IP addresses that were linked to criminal activity or were suspicious, and ask for the name, address or phone number of the person associated with that computer address.
Oliver said it used to take an hour to write a request and then a day to get the information back from companies. But now they need to have grounds to believe a crime has been committed – and it takes two days to write the production order, and in some cases, more than a month to get data back.
In one recent case of suspected child pornography, Oliver said by the time officers found out the suspect’s address, he had moved two days earlier and police had to start from scratch.
“It means investigative delays, it means it takes more police officers to do the same amount of investigations,” he said.
In an interview with Global News: BC1, Justice Minister Jody Wilson-Raybould would only say she is working with her colleagues at Public Safety on this issue, and among many others.
Potential for abuse
But privacy experts warn that subscriber information contains much more than basic facts – it could also allow police to gather search history, record of dissent and other personal facts and to store that information without anyone ever knowing they have it.
“If they’re concerned about paper work, well I’m sorry about that but the (Charter of Rights) makes things inefficient for the police, and that’s an important part of the balancing of it,” said David Fraser, a privacy lawyer in Halifax.
“They shouldn’t be able to just kind of check a box and get access to information about Canadians.”
“They need to go through the process of justifying exactly what it is they’re asking for, why they’re asking for it and why it’s important.”
Fraser said there are examples of people being barred from entering the United States based on “outdated and inaccurate information” gathered by police.
“As soon as you allow police to the discretion to get access to that sort of information, frankly it’s going to be abused. I have no doubt about that,” Fraser said.
But Oliver says the RCMP doesn’t have the resources “to go on fishing expeditions.”
“Normally when we are undertaking an investigation, we have information that there’s been either a criminal offence or there’s a public safety issue that we need to intervene on,” Oliver said.
A ‘narrow’ exception
The Supreme Court’s ruling said police could still get personal information without a warrant in emergency circumstances, or where a “reasonable law” exists.
But it failed to define what a reasonable expectation of privacy would be, something the federal privacy commissioner asked the previous Conservative government to outline in legislation.
“I did ask that Parliament clarify this area, of what is a reasonable expectation of privacy, when would the police be able to access information without a warrant,” Privacy Commissioner Daniel Therrien said in an interview.
“I think that would be desirable because the law of course would be public, it would be transparent, it would be objective.”
Therrien says he would call for a “narrow exception” to all information on the Internet being subject to privacy requirements, using the example of a public phone number.
“When I say public phone number I’m not suggesting at all that all subscriber information is analogous to a phone book and should be available without a warrant. But some subscriber information, for instance a publicly available phone number, would probably fit that bill,” he said.
Fraser, the privacy lawyer, said he would support a police practice that fast-tracks child porn or terrorism cases, but requests would still have to be passed by a judge.
Oliver said he believes a new law could be written that is compliant with the Charter, such making the police report the number of access requests to Parliament.
“This a question that the public and Parliamentarians will have to deal with,” he said, “as to the urgency of it.”