The Canadian Privacy Law Blog: Developments in privacy law and writings of a Canadian privacy lawyer, containing information related to the Personal Information Protection and Electronic Documents Act (aka PIPEDA) and other Canadian and international laws.
The author of this blog, David T.S. Fraser, is a Canadian privacy lawyer who practices with the firm of McInnes Cooper. He is the author of the Physicians' Privacy Manual. He has a national and international practice advising corporations and individuals on matters related to Canadian privacy laws.
For full contact information and a brief bio, please see David's profile.
The views expressed herein are solely the author's and should not be attributed to his employer or clients. Any postings on legal issues are provided as a public service, and do not constitute solicitation or provision of legal advice. The author makes no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained herein or linked to. Nothing herein should be used as a substitute for the advice of competent counsel.
This web site is presented for informational purposes only. These materials do not constitute legal advice and do not create a solicitor-client relationship between you and David T.S. Fraser. If you are seeking specific advice related to Canadian privacy law or PIPEDA, contact the author, David T.S. Fraser.
Tuesday, April 01, 2008
There's been a lot of debate over whether PIPEDA permits a commercial entity, such as an ISP, to provide certain identifying information to law enforcement without a warrant. Most of the debate centers around section 7(3)(c.1) of PIPEDA, which reads:
(3) For the purpose of clause 4.3 of Schedule 1, and despite the note that accompanies that clause, an organization may disclose personal information without the knowledge or consent of the individual only if the disclosure is ...
(c.1) made to a government institution or part of a government institution that has made a request for the information, identified its lawful authority to obtain the information and indicated that
(i) it suspects that the information relates to national security, the defence of Canada or the conduct of international affairs,
(ii) the disclosure is requested for the purpose of enforcing any law of Canada, a province or a foreign jurisdiction, carrying out an investigation relating to the enforcement of any such law or gathering intelligence for the purpose of enforcing any such law, or
(iii) the disclosure is requested for the purpose of administering any law of Canada or a province;
Some are of the view that "lawful authority" means a lawful investigation and that an organization is able to disclose certain information without consent under PIPEDA. Some take the erroneous view that PIPEDA actually authorizes the disclosure, which is not the case at all. This error is compounded by law enforcement who refer to "PIPEDA letters" demanding information from internet service providers in connection with child exploitation investigations.
The Ontario Court of Justice, in an unpublished decision that I understand is under appeal, recently considered the impact of a request by law enforcement for ISP subscriber information. In R. v. Kwok, police officers went online and convinced an unidentified person to provide child pornography to the undercover officer. Using usual techniques, the cops determined the IP address of the suspect and sent a letter to the ISP requesting the billing information associated with the account. The officer testified that he had not read PIPEDA, but understood from an e-mail from the RCMP Commissioner that PIPEDA authorizes such disclosures and these letters should be used to facilitate access to information. Prior to PIPEDA, the officer testified, they routinely sought warrants for this sort of information. The letter used in this case, not surprisingly, cited PIPEDA. The ISP provided the information and an arrest was subsequently made.
The defendant made an application to have the evidence thrown out as it was unlawfully obtained and the Court agreed. The Court held that even if PIPEDA permits access to this information by law enforcement, it is contrary to the Charter for the police to obtain it in this manner.
From Paragraph 35 of the decision:
"The subscriber, in this case, in my view, and based on my reading of the authorities, has an expectation of privacy in respect of this personal information [name and address]. The investigation of these types of crimes is essential and important, but there must always be the proper balancing of the procedures used by the police and the right of citizens to be free from unreasonable search and seizure. Shortcuts, such as set out in s. 7(3)(c) of PIPEDA in the circumstances of this case must be used with great caution, given the notions of freedom and democracy we come to expect in our community. In my view, the police should have procured a warrant to obtain the subscriber information, that is the name and address of the Applicant, in this case, as I have found the name and address is information from which intimate personal details of lifestyle and choices can be obtained. I therefore find there has been a s. 8 violation."
The copy of the decision that I've obtained (R. v. Kwok) is marked "draft" and I haven't been able to find it online. I understand it is under appeal and hopefully the Court of Appeal can clarify what s. 7(3)(c) actually means and whether companies can provide the police with customer information without a warrant. I also hope that the Court will clarify that PIPEDA does not give anyone -- agents of the state in particular -- increased access to personal information, but the reverse.
Note: I've blogged about this topic on a number of occasions. For some background, see http://www.privacylawyer.ca/blog/labels/warrants.html.
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