Patron Privacy and Law Enforcement: Search, Seizure and Intercept

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Patron Privacy and Law EnforcementSearch,
Seizure and Intercept

• David Fewer, Legal Counsel
• CIPPIC The Canadian Internet Policy Public
  Interest Clinic
• Canadian Association of Research Libraries
• Annual General Meeting, May 18, 2007

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Patron Privacy
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Freedom of InquiryAcademic Freedom
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A matter of policy
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A matter of law
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Ontarios Freedom of Information and Protection
of Privacy Act, R.S.O. 1990, C. F.31
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Collection for authorized purposes
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Notice of collectionCollect directly from
individual
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Use only for purposes consistent with the
reason it was collected
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Disclosure only for purposes consistent with
the reason it was collected
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Exceptions law enforcementpursuant to
legally authorized disclosure and interception
requests or orders.
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Limitations of Patron Privacy
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Many means
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Search warrant
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Wiretap
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Production Order
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Many authorities
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law enforcement
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National / federal / local
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Intelligence Agencies
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Administrative authorities
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Judiciary
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Exotics grand juries
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Domestic
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International
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USA
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Judicial authorization - policeFBI
administrative subpoenasGrand juries
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Checks and balances
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1. Judicial authorization
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2. Evidentiary standard- probable cause
reasonable grounds to believe- reasonable
grounds to suspect
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3. Openness- Ex parte v. adversarial
process- Gag orders- obligation to notify
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4. Expiration and renewal
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5. Specificity v. fishing expedition
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Canada
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Search warrantsLaw enforcementCriminal Code, s.
587
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Judicial authorization- generally, requires
judicial authorization- some cases, no need
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2. Evidentiary standard- Generally,
reasonable grounds to believe- Some cases,
reasonable grounds to suspect
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3. Openness- Ex parte but may be challenged-
Gag orders available- obligation to notify
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4. Expiration and renewal- usually limited in
time
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5. Specificity v. fishing expedition-
reasonable grounds to believe that the search
will provide evidence or information.
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InterceptsLaw EnforcementCriminal Code, s. 183
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Judicial authorization- generally, requires
judicial authorization- some cases, no need
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2. Evidentiary standardWith consent
reasonable grounds to believe that - an
offence has been or will be committed, and -
that relevant information is likely to be
collected via the interception. Without
Consent must also demonstrate that - other
less intrusive investigatory means have been
tried and failed or that the urgency of the
matter makes other procedures impractical, and
- the interception is in the best interests of
justice
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3. Openness- Ex parte but may be challenged-
Gag orders available- obligation to notify
within 90 days
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4. Expiration and renewal- 60 days
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5. Specificity v. fishing expedition-
reasonable grounds to believe that the search
will provide evidence or information.
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Anti-Terrorism Actterrorist group
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No need to demonstrate last resort
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Dont expire for a year
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May delay informing for up to 3 years
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Production OrdersCybercrime Treaty
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A judge may order a third party to produce
documents, copies of documents or data (or to
prepare and produce a document based on other
documents or data) to a named peace officer, or
other public officer who has the powers to
administer and enforce an act of Parliament.
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Judicial authorization- requires judicial
authorization
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2. Evidentiary standardreasonable grounds to
believe that (a) an offence against this Act or
any other Act of Parliament has been or is
suspected to have been committed(b) the
documents or data will afford evidence respecting
the commission of the offence and(c) the person
who is subject to the order has possession or
control of the documents or data.
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3. Openness- Ex parte but may be
challengedby disclosing organization- Gag
orders available- no obligation to notify
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4. Expiration and renewal- one off orders
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5. Specificity v. fishing expedition-
reasonable grounds to believe - amenable to
fishing expeditions
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CSIS
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to collect, by investigation or otherwise, to
the extent that it is strictly necessary, and
analyse and retain information and intelligence
respecting activities that may on reasonable
grounds be suspected of constituting threats to
the security of Canada
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Anti-Terrorism Act threats to the security of
Canada includes foreign influenced activities
within or relating to Canada that are detrimental
to the interests of Canada and are clandestine or
deceptive or involve a threat to any person.
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Information exchange
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Intercept ordersuseful safeguards(reasonable
grounds to believe, 60 days, last resort,
specificity)
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Lawful Access
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Modernization of Investigative Techniques Act
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Bill C-74
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Bill C-416
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subscriber data requests
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Intercept capability
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Carve out for educational institutions
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USA
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JurisdictionThe Territoriality Principle
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Expansive interpretation
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Key subject to personal jurisdiction of US
courts
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USA PATRIOT Act
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s. 215 Production Orders
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allow the Director of the FBI (or his designee)
to make an application for an order requiring the
production of any tangible things (including
books, records, papers, documents, and other
items) for an investigation to obtain foreign
intelligence information not concerning a United
States person or to protect against international
terrorism or clandestine intelligence activities
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Judicial authorization- requires authorization
of Foreign Intelligence Surveillance Court
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2. Evidentiary standardno requirement for
probable cause
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3. Openness- Ex parte - typically
accompanied by gag orders - no obligation to
notify
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4. Expiration and renewal- one off orders
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5. Specificity v. fishing expedition- amenable
to fishing expeditions- things (databases)
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Information Privacy Commissioner of British
Columbia2004 Report there is a general
consensus that the FIS Court could, under FISA,
order a U.S.-located corporation to produce
records held in Canada that are under the U.S.
corporations control.
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CIPPICs view any organization subject to
personal jurisdiction of a US court- Cdn branch
of US co.- Cdn co. with US branch
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National Security Letters
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Production orders
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Judicial authorization- administrative, not
judicial order- authorized individuals include
FBI Special Agents
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2. Evidentiary standard- no requirement for
probable cause- relevant to an authorized
investigation to protect against international
terrorism or clandestine intelligence activities

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3. Openness- no obligation to notify
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4. Expiration and renewal- one off orders
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5. Specificity v. fishing expedition- amenable
to fishing expeditions- things (databases)
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Grand Jury Subpeonas
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an American civilian jury that investigates,
under the guidance of a prosecutor, the
possibility of criminal acts.
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Judicial authorization- judicial order
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2. Evidentiary standard- no requirement for
probable cause- mere suspicion of criminality
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3. Openness- operate in secrecy - no
obligation to notify- gag orders available
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4. Expiration and renewal- will vary with state
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5. Specificity v. fishing expedition- amenable
to fishing expeditions- things (databases)
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Conclusions- era of retracting civil
liberties- increasing LEA militancy- policy
laundering- reduced judicial oversight-
concerns over USA PATRIOT Act valid, but not the
only issue
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Other nationsChina. Singapore. Etc.
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Thank You

• (Go Sens!)

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Patron Privacy and Law EnforcementSearch,
Seizure and Intercept

• David Fewer, Legal Counsel
• CIPPIC The Canadian Internet Policy Public
  Interest Clinic
• Canadian Association of Research Libraries
• Annual General Meeting, May 18, 2007