Police need warrant for basic carrier subscriber information: Supreme Court of Canada

By Howard Solomon
IT World Canada

Canadian Internet providers can’t turn over basic subscriber information to police without a search warrant, the country’s top court has ruled.

In a unanimous decision released Friday morning, the Supreme Court of Canada said Canadians expect that information held by carriers is private – that they have a right to anonymity on the Internet that can’t be violated by a police request for information in the process of a criminal investigation.

“It would be reasonable for an Internet user to expect that a simple request by police would not trigger an obligation to disclose personal information,” the court said. By asking for information, police are in fact requesting a search – which needs a court-authorized warrant. No warrant, then any information police get is a violation of a subscriber’s Charter of Rights freedoms.

On the other hand, in the specific case before the court the judges said the evidence police gained – a subscriber’s name and address liked to his IP address – could still be allowed in a trial. Police were acting what they reasonably through was a lawful way to purse in an important law enforcement purpose, the court said, possession of child pornography. Therefore it will allow the evidence to stand. However, it sent the case back to a lower court for a new trial on a separate point (see below).

The case has important ramifications for carriers. Rogers Communications recently revealed that of the 174,000 requests for information it received last year from law enforcement agencies, roughly half are to confirm the name and address of a subscriber they already have. Some 9,339 dealt with emergency requests from police officers in life-threatening situations where court orders couldn’t be obtained – so called exigent circumstances.

Asked for comment, Rogers issues a statement saying it is reviewing the decision. “We’ll continue to safeguard our customers’ information and comply with the law,” it added. BCE Inc.’s Bell Canada also said it is reviewing the decision.

(Read the full decision here)

The ruling could also force the Harper government to change the wording of the controversial C-13 and S-4 legislation now before Parliament. C-13, the so-called cyberbulling law, includes provisions that protect organizations from being sued for voluntarily handing over information to police under certain circumstances.

The Supreme Court said voluntarily giving information to police can only happen in time-pressing circumstances, or under a reasonable law.

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