Justice Minister Peter MacKay appeared last week before the Standing Committee on Justice and Human Rights and was asked once again about the inclusion in Bill C-13 of an immunity provision for intermediaries for the voluntary disclosure of personal information. MacKay again suggested that warrants would be required for disclosure, yet this is simply inaccurate. The exchange:

Hon. Peter MacKay: I would disagree with your characterization as giving Internet service providers immunity. What it is asking is that we respect the existing law, that we work closely with them, as they are in fact to use the analogy, they are the highway, they are the infrastructure in which the information travels, so by necessity we have to work with them.  On the subject that you raised yesterday and are alluding to here again, Mr. Casey, the ability to provide voluntary access to that information still requires respecting the law. It still requires adherence to what is called PIPEDA, it’s another federal statute in which what this legislation will do is freeze in time the material which is sought out and require individuals to hold that information until such time as a warrant can be obtained. So it is a preservation provision of this statute that allows police to then go about securing the necessary judicial authorization, in essence the warrant.

Mr. Sean Casey: It also protects them from civil action and criminal sanction by producing this information voluntarily.

Hon. Peter MacKay: Only if they comply with the law. They’re not immune from prosecution or civil action if they go outside the boundaries of the law, that is if they do not comply with warrants, if they do not comply with the preservation orders within the prescribed periods.

While MacKay is correct that Internet providers must comply with the law, he is wrong to suggest the voluntary cooperation only extends to preserving information until a warrant can be obtained (and he is wrong that compliance with the law is linked to compliance with warrants or preservation orders; the compliance with the law speaks to compliance with laws such as PIPEDA).

As I posted last week, this is not complicated. PIPEDA allows for voluntary disclosure of personal information without court oversight. Bill C-13 would provide complete civil and criminal immunity for ISPs that disclose subscriber information voluntarily. Such voluntary disclosure could occur without a warrant or any court oversight.  Minister MacKay’s repeated assurances that there is a warrant involved with the disclosure is simply wrong.