be considerably diminished.
79 This is a troubling result given that most privacy
policies and terms of service for telecommunications services are effectively contracts of adhesion.
In addition, Spencer addressed only one kind of customer data. The lack of
certainty over what customer information attracts a reasonable expectation of privacy—and in what circumstances—means that different organizations may respond
to law enforcement requests in different ways, leaving individuals “in the dark about
when their personal information may be disclosed to state authorities without their
consent or prior judicial authorization”.
80
Under pressure from civil society groups, and as a result of voluntary disclosures
made by Telco’s in the United States, Canadian Telco’s began to make voluntary
disclosures in 2013 and 2014 regarding the number of requests they had received
from police and their responses to these requests. In 2015, the federal Department of
Industry released Voluntary Reporting Guidelines
81 to provide guidance to organizations that chose to report on their disclosures of customer information in response
to requests from state authorities. The guidelines, which seek to balance the need for
transparency with the public interest in law enforcement and national security,
82
have been welcomed by the OPC as a “good first step”.
83
As noted earlier, where there is a reasonable expectation of privacy in data or
information, prior judicial authorization is generally required before law enforcement can rely upon it. The Criminal Code details the different types of warrants that
are available depending upon the nature of the information sought. It uses two
different judicial standards: reasonable grounds to believe and reasonable grounds
to suspect. The former standard is typically applied to information in which there is a
higher expectation of privacy.
Under the Criminal Code, a court may require those in possession of data hosted
on a computer system to preserve it,
84 or to provide it to law enforcement officials.
85
Preservation orders are available where there are “reasonable grounds to suspect”
that an offence has been or will be committed. Production orders are also available
for data,
86 the tracing of specific communications,
87 or for transmission data.
88 A
production order is available for data and documents where there are “reasonable
grounds to believe” that an offence has or will be committed. However, a production
79 See discussion by Penney (2014).
80 Privacy Commissioner of Canada (2015c) Submission to Standing Committee on Industry.
81 Innovation, Science and Economic Development Canada (2015) Transparency Reporting
Guidelines.
82 Ibid.
83 Ibid. at 3.
84 Criminal Code, RSC 1985, c C-46, s. 487.013.
85 Criminal Code, s. 487.014.
86 Criminal Code, s. 487.014.
87 Criminal Code, s. 487.015.
88 Criminal Code, s. 487.016.
68
T. Scassa
79 This is a troubling result given that most privacy
policies and terms of service for telecommunications services are effectively contracts of adhesion.
In addition, Spencer addressed only one kind of customer data. The lack of
certainty over what customer information attracts a reasonable expectation of privacy—and in what circumstances—means that different organizations may respond
to law enforcement requests in different ways, leaving individuals “in the dark about
when their personal information may be disclosed to state authorities without their
consent or prior judicial authorization”.
80
Under pressure from civil society groups, and as a result of voluntary disclosures
made by Telco’s in the United States, Canadian Telco’s began to make voluntary
disclosures in 2013 and 2014 regarding the number of requests they had received
from police and their responses to these requests. In 2015, the federal Department of
Industry released Voluntary Reporting Guidelines
81 to provide guidance to organizations that chose to report on their disclosures of customer information in response
to requests from state authorities. The guidelines, which seek to balance the need for
transparency with the public interest in law enforcement and national security,
82
have been welcomed by the OPC as a “good first step”.
83
As noted earlier, where there is a reasonable expectation of privacy in data or
information, prior judicial authorization is generally required before law enforcement can rely upon it. The Criminal Code details the different types of warrants that
are available depending upon the nature of the information sought. It uses two
different judicial standards: reasonable grounds to believe and reasonable grounds
to suspect. The former standard is typically applied to information in which there is a
higher expectation of privacy.
Under the Criminal Code, a court may require those in possession of data hosted
on a computer system to preserve it,
84 or to provide it to law enforcement officials.
85
Preservation orders are available where there are “reasonable grounds to suspect”
that an offence has been or will be committed. Production orders are also available
for data,
86 the tracing of specific communications,
87 or for transmission data.
88 A
production order is available for data and documents where there are “reasonable
grounds to believe” that an offence has or will be committed. However, a production
79 See discussion by Penney (2014).
80 Privacy Commissioner of Canada (2015c) Submission to Standing Committee on Industry.
81 Innovation, Science and Economic Development Canada (2015) Transparency Reporting
Guidelines.
82 Ibid.
83 Ibid. at 3.
84 Criminal Code, RSC 1985, c C-46, s. 487.013.
85 Criminal Code, s. 487.014.
86 Criminal Code, s. 487.014.
87 Criminal Code, s. 487.015.
88 Criminal Code, s. 487.016.
68
T. Scassa