Tuesday, August 19, 2014

Is "Homer" Harper still eavesdropping on you?

Good Day Readers:

Recently, the Supreme Court of Canada ruled no more free disclosure for internet and telecommunications system providers. If the government wants your personal information they must now produce a warrant. That's the subject of the first article. But what about Cell Site Location Information (CSLI) data used, for example, by the police to verify a suspect's alibi as to where they were when the dastardly deed was committed?

Canadian legislation in this area seems to parallel that of the United States. Currently, an interesting debate is emerging because the government there is arguing it does not need a warrant to access CSLI data. But what about Canada? Don't know not Philadelphia lawyers here anyone know?

Sincerely,
Clare L. Pieuk
Supreme Court to personal data plunderers: Get a warrant

Ruling strikes blow against warrantless disclosures of web and telecom subscriber information

By Michael Geist
Tuesday, July 22, 2014
Last month, the Supreme Court of Canada ruled that voluntary disclosures of internet and telecom subscriber information to law enforcement amount to illegal searchers.

Canadian internet and telecom providers have, for many years, disclosed basic subscriber information, including identifiers such as name, address, and IP address, to law enforcement without a warrant. The government has not only supported the practice, but actively encouraged it with legislative proposals designed to grant full civil and criminal immunity for voluntary disclosures of personal information.

Last month, the Supreme Court of Canada struck a blow against warrantless disclosure of subscriber information, ruling that there is a reasonable expectation of privacy in that information and that voluntary disclosures therefore amount to illegal searches.

The decision left little doubt that internet and telecom providers would need to change their disclosure policies. Last week, Rogers, the country's largest cable provider, publicly altered its procedures for responding to law enforcement requests by announcing that it will now require a court order or warrant for the disclosure of basic subscriber information to law enforcement in all instances except for life-threatening emergencies (warrantless disclosures may still occur where legislation provides the lawful authority to do so). Telus advised that it has adopted a similar approach.

The change in policy, which should ultimately be mirrored by all Canadian providers, will have a massive impact on how law enforcement operates and on the privacy of millions of Canadians. Simply put, the number of government requests for subscriber information has been staggering, most of which occur without court oversight.

Million-plus disclosures every year

A 2011 document supplied to the Privacy Commissioner of Canada advised of 1.2 million requests for subscriber information affecting roughly 750,000 account holders. While that revelation garnered media headlines across the country, a little-noticed 2013 document from Public Safety Canada released under the Access to Information Act indicates that in excess of a million requests annually has been standard for years.

The document states that ITAC members (the Information Technology Association of Canada that counts major telecom providers among its members) "handled 1,130,000 basic subscriber information requests annually from 2006 to 2008."

As Canadian telecom and internet providers race to comply with the law by reversing longstanding practices, law enforcement and the government must also catch up. Law enforcement will rarely seek voluntary disclosure (except in exigent circumstances) since it is likely to be treated as an illegal search and the resulting information will be inadmissible in court.

Meanwhile, Justice Minister Peter MacKay faces an important decision. With law enforcement not seeking voluntary disclosure of personal information and providers requiring a warrant, the government's proposed immunity provision in Bill C-13, the Protecting Canadians from Online Crime Act, now seems inoperable since it is contingent on a lawful voluntary disclosure, of which customer name and address information is not.

The Canadian government could adopt the "bury our heads in the sand approach" by leaving the provision unchanged, knowing that it will be unused or subject to challenge. That would run counter to the spirit of the Supreme Court ruling, however, and do nothing to assist law enforcement.

A new kind of warrant

If the government is serious about providing law enforcement with the tools they need to address online harms, it will drop the voluntary disclosure immunity provision in Bill C-13 and its companion proposal in Industry Minister James Moore's Bill S-4, which seeks to expand voluntary disclosure in non-law enforcement cases.

In their place, a new subscriber information warrant could be developed that ensures court oversight, an appropriate evidentiary standard given the Supreme Court's finding of the privacy import of such information, and a system to allow law enforcement to apply for a subscriber information warrant expeditiously.

While government MPs were unmoved during committee hearings by repeated expression concerns from experts about the voluntary disclosure provisions, the Supreme Court decision effectively reshaped Canadian privacy law and has forced everyone to rethink longstanding practices. As internet and telecom providers change their approach, the big question is whether the government is prepared to do the same.

Read more: Politics, Science + Tech

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at mgeist@uottawa.ca or online at
wwww.michaelgeist.ca.
Cellphones need a warrant, but cell site location? Appellants challenge government's assertions

By Tim Cushing
Tuesday, August 12, 2014

The Supreme Court's recent finding that warrantless cell phone searches are unconstitutional is already generating some pretty interesting arguments in ongoing cases. The government obviously wishes to mitigate the "damage" done by this decision by still doggedly pursuing data through warrantless methods.

In this particular case, the government is arguing that it has every right to access cell site location information (CSLI) without a warrant, claiming that the Riley decision solely pertains to the contents of cell phones.

Obtaining CSLI without a warrant is still Constitutionally-dubious, however. One state court and a federal court have held that this information should only be obtained with a warrant. In the prior case, it was found that the state's Constitution provided more protection than the US Constitution and in the latter, the finding was very narrowly tailored to the case at hand, making it very difficult to apply to others cases, even under the same jurisdiction.

While the government makes the usual claims about third party data and warrant requirements being an undue burden, the appellant's reply takes those arguments apart.

The government is quite candid in its brief that it wishes to use cell phone location data to conduct dragnet surveillance without any individualized suspicion, or even a belief that a crime has occurred. It claims that CSLI is a simple building block at the beginning of an investigation that is the equivalent of chatting with bystanders. Riley refused to countenance this warrantless practice when it explained that location data qualifies as one of the “privacies of life” that the Fourth Amendment protects.

The appellant's reply further disassembles the government's assertion that grabbing cell location info is like "chatting with bystanders" in order to help "build an investigation." In one footnote, it asks why the government feels it shouldn't need a warrant for the cell location data when it obviously found a warrant necessary elsewhere, belying its "building an investigation" claim.

Here, this argument is demonstrably false. Appellants had already been arrested and indicted–and multiple search warrants had already been issued–before the government first sought the 18 U.S.C. § 2703(d) orders. In fact, some of the warrants were to search the cell phones.

In another, it attacks the ridiculousness of the Third Party Doctrine, which the government claims gives it the "right" to grab records without warrants and, in essence, turns the cell provider into nothing more than an impartial witness/bystander.

Contrary to the government’s assertion, nobody at Sprint witnessed Appellants’ movements, let alone any criminal activity. The government required Sprint to record his movements, using Sprint as the custodian. The technology itself needs only ephemeral and anonymous detection of location. Using this artefact of the technology as a retrospective homing beacon does not transform Sprint into a witness. Without the government’s action, no person would have ever known or seen the Appellants’ every move over the course of seven months.

If there's anything the court should pay particular attention to, it's this footnote. The government has successfully argued for years that so-called "business records" carry no expectation of privacy while hiding the fact that many of these records are maintained to meet government regulations. The government compels the production of records and then claims it should have broad, warrantless access to them because cell phone owners "voluntarily" generated these by using their phones. It ignores the fact that there's no way for customers to opt out of these collections, short of not using a phone. This ties into the Riley decision, in which the Supreme Court noted that having a cell phone isn't some sort of luxury enjoyed by a small percentage of the population but a necessity of modern life.

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