The Canadian Press reports that the RCMP has abandoned some Internet-related investigations because it is unable to obtain warrantless access to subscriber information. The article is based on an internal memo expressing concern with the additional work needed to apply for a warrant in order to obtain access to subscriber information. The changes have arisen due to the Supreme Court of Canada’s Spencer decision, which held that there is a reasonable expectation of privacy in subscriber information. As a result, it is believed that most telecom and Internet providers have rightly stopped voluntary disclosures without a warrant (some have still not publicly stated their disclosure practices).
The article notes how easily subscriber information was disclosed prior to Spencer:
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.
The troubling aspect of the story is not that some investigations are being curtailed because law enforcement is now following due process and that telecom providers are requiring a warrant before disclosing subscriber information. It is that for millions of requests prior to Spencer, it took nothing more than five minutes to fill out a form with the information voluntarily released without court oversight and without notifying the affected subscriber.
Moreover, the change in practice points to how the government’s claims that Spencer does not change anything with respect to Bills C-13 and S-4 is simply not credible. Those bills rely heavily on expanding voluntary disclosure at the very time that the approach has been discredited by the courts and abandoned by the telecom and Internet providers.
If the government were serious about providing law enforcement with effective investigative tools, it would drop the emphasis on warrantless voluntary disclosure and rethink its approach to new Internet warrants. As the Privacy Commissioner of Canada argued yesterday at a Senate committee, the threshold for a metadata warrant should be raised consistent with the privacy importance of the information. Meanwhile, the government could explore a new basic subscriber information warrant that would ensure court oversight but allow for access on an expedited basis. By maintaining that Spencer has no effect on its legislative proposals, it leaves everyone unhappy: police do not get the information they need (with appropriate oversight), the public is concerned with the privacy implications of lawful access, and the government’s hand-picked Privacy Commissioner criticizes it for failing to strike the right balance.