Why Peter MacKay Is Wrong About Warrantless Access to Personal Information

The debate on Bill C-13 opened yesterday in the House of Commons with opposition MPs calling on the government to split the bill into two (cyberbullying and lawful access) and raising concerns about the voluntary disclosure provision that would give Internet providers complete criminal and civil immunity for voluntary retention and disclosure of subscriber information. When asked about the issue, Justice Minister Peter MacKay said the following:

The provision would clarify that the police officer can lawfully ask – and he points out – that individuals and groups voluntarily preserve data or provide documentation, but only when no prohibition exists against doing so. That is to suggest that organizations would still be bound by the Personal Information Protection and Electronic Documents Act, something known as PIPEDA, which makes it clear that an organization is entitled to voluntarily disclose personal information to the police, without the consent of the person to have the information relayed.

However police have to have lawful authority to do so. They still have to obtain a warrant. They can ask that the information be preserved and temporarily put on hold so that it cannot be deleted, but in order for police to access that information that is frozen, they must still obtain a warrant. There is no warrantless access.

Unfortunately, MacKay is wrong.

PIPEDA, the private sector privacy law, does contain an exception for voluntary warrantless disclosure as part of a law enforcement investigation.  Section 7(3)(c.1)(ii) states:

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
(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

As MacKay notes, this provision allows for voluntary disclosure of personal information without court oversight. Indeed, we know that Internet providers disclose subscriber information tens of thousands of times every year without such oversight (and without transparency on their practices).

Yet MacKay is wrong when he says that police must obtain a warrant to access the information. With the voluntary disclosure, law enforcement has access and there is no warrant. MacKay seems to think “lawful authority” is a reference to a warrant. In fact, the opposite is true as Bill C-12 (the PIPEDA reform bill) sought to clarify the meaning of “lawful authority” by defining it as an authority other than a warrant or court order.

The changes in Bill C-13 would likely increase voluntary disclosures without a warrant since ISPs and telecom providers would know that any warrantless disclosure would be free from legal liability. There have been some efforts to suggest that the PIPEDA exception is limited to less sensitive data, but the government has never confirmed this to be the case. In fact, in its 2007 response to PIPEDA reform recommendations, it stated:

The government wishes to confirm that the purpose of s. 7(3)(c.1) is to allow organizations to collaborate with law enforcement and national security agencies without a subpoena, warrant or court order.

With the change in C-13, ISPs and telecom companies may be far more willing to disclose information about their subscribers without fear of liability. Indeed, law enforcement will be able to point to PIPEDA and the changes to argue that complete cooperation without a warrant is perfectly permissible and carries no legal risk of liability.  That represents a serious privacy risk and Justice Minister MacKay is wrong to downplay the concern and inaccurately tell the House of Commons that there is no warrantless access.


  1. Voluntary compliance will give police the opportunity to make offers that can’t be refused when there are other unrelated matters that could be the basis for police action.

  2. unbelievable
    Any search and disclosure of any personal communications that is not an extreme emergency should never be granted with out a warrant.
    Unless we want to live in a police state, police and the government should never be granted unlimited access to private personal communications.

  3. He’s not wrong, he’s LYING.
    There is too much money for companies, and too much power for governments, for either of them to come clean now. The only way to keep the Internet that we used to think we had, is to encrypt our stuff with our own key on our own machines. Fortunately this gets easier everyday with products such as the SafePlug from PogoPlug or AeroFS from Air Computing, to name just the most recent.
    Google`s CEO Schmidt just said that in ten years everything will be encrypted, but it will be people who will do it themselves.

  4. Privacy Guy
    1) The government is supposed to represent the people.
    2) I don’t know anyone that wants LESS privacy.

    One of these two statements must be flawed…but which one???


  5. This is critical
    Michael, you bring up a very important point here. How can the public be made to know what is going on? How can MacKay be made aware of his mistake, or is this error intentional, to pass a law that will be interpreted by the courts for what it says, and not for what MacKay claims it says before it’s passed?