On the issue of warrantless access to subscriber information, a Public Safety document demonstrates that the intention is to use this data for purposes that do not involve criminal or child pornography concerns. For example, it notes that warrants would be problematic for “non-criminal, general policing duties” such as returning stolen property. Is the government really proposing to drop key privacy protections for non-criminal concerns?
Moreover, despite claims that court oversight would burden the court system, previously undisclosed RCMP data shows 95% of requests for subscriber information are already met on a voluntary basis. Claims that court oversight would “literally collapse an already over-burdened judicial system” is therefore entirely inconsistent with the data that shows the overwhelming majority of cases are handled without court oversight. The need for court oversight arises for the last five percent, not 100% of the cases.
In addition to the documents that undermine the case for warrantless access to customer name and address information, the documents suggest that Toews is incorrect when he states that there will be no warrantless interception of Internet communications. Indeed, department officials point out that Section 184.4 of the Criminal Code already permits warrantless interception in exceptional circumstances:
A peace officer may intercept, by means of any electro-magnetic, acoustic, mechanical or other device, a private communication where
(a) the peace officer believes on reasonable grounds that the urgency of the situation is such that an authorization could not, with reasonable diligence, be obtained under any other provision of this Part;
(b) the peace officer believes on reasonable grounds that such an interception is immediately necessary to prevent an unlawful act that would cause serious harm to any person or to property; and
(c) either the originator of the private communication or the person intended by the originator to receive it is the person who would perform the act that is likely to cause the harm or is the victim, or intended victim, of the harm.
Canadian courts have been divided on the constitutionality of the provision.
The lawful access bill is expected to be introduced on Tuesday