How cops in Canada could obtain your data without a warrant
VICE News has obtained details of the Canadian government’s blueprint for restarting a program to allow cops access to your personal information without a warrant.
The Trudeau government has spent nearly a year considering how to bring back a frequently-used police practice which has been mostly forbidden since the Supreme Court declared it unconstitutional in 2014.
According to consultation documents obtained by VICE News, this new legislative scheme would authorize “on demand” access by police to basic subscriber information that has “a low expectation of privacy,” although with “certain safeguards.”
It also proposed creating a new specialized warrant that would allow police to obtain more sensitive, personal information if they have “reasonable grounds to suspect” a crime has been, or will be, committed — a relatively low legislative threshold, but one that still requires approval from a judge or a justice of the peace.
“These options will all be considered by the Minister, who may decide to proceed with one or none.”
The documents shed light on a report drafted by a cyber security working group that was tasked by the federal government to sketch out legislative proposals. That report concluded that a “two-tiered legislative response” was necessary, although it remains unclear exactly what the full conclusion was, because the government has refused to release the working group’s full report. But a summary of its findings are contained in the consultation documents obtained by VICE News and provided to various stakeholders from whom the government is soliciting feedback.
Last week VICE News reported that the government has been drafting new rules that enables police to request and receive personal information about Canadians without a warrant, and often without a paper trail. The government refers to this information as “basic subscriber information,” and it is often provided by telecommunications companies, banks, and other companies. It could be as innocuous as connecting a phone number to a name, but police also used this program to link IP addresses to a name, or determine someone’s email address or even their GPS location. Since being declared unconstitutional, police have lamented that their investigations have been significantly hampered.
The government has convened a roundtable of lawyers, law enforcement professionals, and academics in Toronto on Monday to discuss the proposals. One of the stakeholders provided VICE News with a discussion paper that had been sent to participants.
The office of Public Safety Minister Ralph Goodale has insisted that no new legislation has been drafted, although at least some of the details appear to have already been sketched out.
“After the [meeting of the federal-provincial working group], work on policy options was undertaken based on the input received,” a spokesperson for Goodale told VICE News last week. He added: “These options will all be considered by the Minister, who may decide to proceed with one or none.”
The consultation document asks the experts whether other agencies — like the Canadian Border Services Agency, the Canadian Security Intelligence Service, and others — should have access to this warrantless access program, in which type of emergencies police should be able to obtain Canadians’ data without a warrant, and whether police should always need a warrant to link an anonymous IP address to a name and physical address.
“They are trying to get around a clear, unanimous decision of the Supreme Court.”
“One of the fundamental purposes of this consultation is to solicit views on where and how the line should be drawn between BSI that can properly be obtained through an administrative scheme and BSI that should ordinarily only be available with judicial authorization,” the document reads.
David Fraser, a Halifax-based lawyer and partner at the McInnes Cooper law firm, is cautiously optimistic, but still sees an attempt by Ottawa to restart a program that had been declared unconstitutional.
“They are trying to get around a clear, unanimous decision of the Supreme Court,” Fraser told VICE News. He said the documents he’s seen from the government on this file suggest they’re “downplaying” the top court’s ruling on the matter.
For example, if the administrative scheme — that is, the process that won’t require going to a judge to get a warrant — will let police obtain connect an IP address to personal information, Fraser says it’s hard to imagine that the new legislation will comply with what the Supreme Court wrote in 2014.
“Nine judges, who are not subject to appeal, said, with one voice, that they can’t do that. They still want to do that and there is widespread opposition, so they are trying to do all sorts of acrobatics to work around it,” Fraser says.
The Monday session runs all day, and compromises 50 stakeholders from privacy watchdogs to the Federal privacy commissioner, to lawyers who have dealt with the warrantless access program extensively.