Every 27 seconds. Minute after minute, hour after hour, day after day, week after week, month after month. Canadian telecommunications providers, who collect massive amounts of data about their subscribers, are asked to disclose basic subscriber information to Canadian law enforcement agencies every 27 seconds. In 2011, that added up to 1,193,630 requests. Given the volume, most likely do not involve a warrant or court oversight (2010 RCMP data showed 94% of requests involving customer name and address information was provided voluntarily without a warrant).
In most warrantless cases, the telecommunications companies were entitled to say no. The law says that telecom companies and Internet providers may disclose personal information without a warrant as part of a lawful investigation or they can withhold the information until law enforcement has obtained a warrant. According to newly released information, three telecom providers alone disclosed information from 785,000 customer accounts in 2011, suggesting that the actual totals were much higher. Moreover, virtually all providers sought compensation for complying with the requests.
These stunning disclosures, which were released by the Office of the Privacy Commissioner of Canada, comes directly from the telecom industry after years of keeping their disclosure practices shielded from public view. In fact, the industry was reluctant to provide the information to even the Privacy Commissioner.
According to correspondence I obtained under the Access to Information Act, after the Commissioner sent letters to the 12 biggest telecom and Internet providers seeking information on their disclosure practices, Rogers, Bell and RIM proposed aggregating the information to keep the data from individual companies secret. The response dragged on for months, with Bell admitting at one point that only four providers had provided data and expressing concern about whether it could submit even the aggregated response since it would be unable to maintain anonymity [I've released the full ATIP I received here].
The correspondence also confirms that the telecom providers were concerned about how the government and law enforcement would react to public disclosures. In one email, Bell says that “we are walking a delicate line between supporting privacy and not antagonizing Public Safety/LEAs [law enforcement agencies], so the materials will be pretty factual, not much commentary.”
While the current situation, which amounts to disclosure of subscriber information thousands of times each day often without a warrant, is enormously problematic, the situation is about to get even worse.
First, Bill C-13, the government’s lawful access bill that heads to committee this week, will expand warrantless disclosure of subscriber information to law enforcement by including an immunity provision from any criminal or civil liability (including class action lawsuits) for companies that preserve personal information or disclose it without a warrant. The immunity provision makes it more likely that disclosures will occur without a warrant since the legal risks associated with such disclosures are removed.
Second, Bill S-4, the newly-introduced Digital Privacy Act, proposes extending the ability to disclose subscriber information without a warrant from law enforcement to private sector organizations. The bill includes a provision that allows organizations to disclose personal information without consent (and without a court order) to any organization that is investigating a contractual breach or possible violation of any law. This applies both past breaches or violations as well as potential future violations. The disclosure occurs in secret without the knowledge of the affected person.
Third, the industry has steadfastly refused to address the lack of transparency concerns regarding its practices. Providers admit that they do not notify customers that their information has been requested, thereby denying them the ability to challenge the demand in court. Moreover, documents released earlier this year suggested that companies such as Bell have even established a law enforcement database that may provide authorities with direct access to subscriber information. The systems may create great efficiencies for law enforcement – click, access subscriber data, and receive a bill from the telecom company – but they suggest a system that is entirely devoid of oversight with even the Privacy Commissioner excluded from ensuring compliance with the law.