The RCMP has abandoned some investigations because of a key Supreme Court ruling that said police require a warrant or other legal tool to obtain basic internet subscriber information, an internal government memo says.
- Online privacy decision means 'back to the drawing board' for Tories
- Daniel Therrien grilled on views about police powers in cyberbullying bill
- Stockwell Day calls for changes to cybercrime bill
The Mounties and Canada's spy and border agencies are "very concerned" about increased paperwork and delays now involved in obtaining such information, the newly disclosed memo says.
In addition, the Justice Department is "examining the need for potential remedies" following the landmark June ruling.
The Public Safety Canada note is perhaps the first concrete indication from federal police and intelligence officials of how the Supreme Court decision is affecting their work.
A copy of the memo was released to The Canadian Press under the Access to Information Act.
Basic subscriber information includes a person's name, phone number and internet protocol (IP) address, but not the actual content of messages or their metadata, such as time stamps and routing codes.
Before the Supreme Court decision, law-enforcement agencies submitted hundreds of thousands of warrantless requests for such data annually to telecommunications companies, and they complied in about 95 per cent of cases.
Telcos have 'erred on the side of caution': memo
At least two major telecommunication firms, Rogers and Telus, have since stopped routinely disclosing basic customer information without a warrant or production order.
The memo says telecom companies "have erred on the side of caution" by requiring warrants for all basic subscriber information requests except listed landlines and emergency demands.
The RCMP, Canada Border Services Agency and Canadian Security Intelligence Service "are very concerned about the potentially unsustainable resource and operational fallout" from the June ruling, the memo adds.
Prior to the court decision, the RCMP and border agency estimate, it took about five minutes to complete the less than one page of documentation needed to ask for subscriber information, and the company usually turned it over immediately or within one day.
The agencies say that following the Supreme Court ruling about 10 hours are needed to complete the 10-to-20 pages of documentation for a request, and an answer can take up to 30 days.
Banks, car rental companies also review ruling
Applying for a production order requires that all the elements of an offence under the Criminal Code have been met but — posing a Catch-22 — basic subscriber information is often needed to meet that threshold, the memo says.
For instance, a child could receive a "creepy" email from someone, but that might not be enough to fulfil the requirements of a child-luring offence.
"Evidence is limited at this early stage, but some cases have already been abandoned by the RCMP as a result of not having enough information to get a production order to obtain (basis subscriber information)," the memo says.
Other concerns outlined in the note:
- Some telecom providers keep internet protocol logs for 30 days or less, and they may be erased by the time a company processes a production order;
- Banks, hotels, and car rental companies are reviewing the Supreme Court decision and "a few have signalled less voluntary co-operation" in future.
Still, the federal privacy commissioner said Thursday there appears to be wide variation in how the Supreme Court ruling is being interpreted.
Privacy watchdog calls for clarity
As a result, Canadians are still in the dark about what may happen to their personal information, Therrien told a Senate committee studying the government's cyberbullying bill.
Complicating matters is an immunity provision of the bill that would protect companies from legal liability should they voluntarily disclose personal information in response to requests without a warrant.
Therrien urged Parliament to put an end to the ambiguity and clarify what — if anything — remains of the common-law policing powers to obtain information without a warrant.
The Public Safety memo says the department and other federal agencies continue to "document the resource and investigative impacts" of the court decision.
"Justice Canada is gathering information and examining the need for potential remedies."