The Harper government’s decision not to amend or delete a section of its online crime legislation that protects carriers that disclose subscriber information to law enforcement agencies without a warrant is nothing more than burying its head in the sand, says a legal critic.

University of Ottawa Internet law professor Michael Giest said in a column Thursday that the government is trying to ignore a Supreme Court of Canada decision in June that clearly said police need a warrant to get even basic subscriber information from carriers.

But this week the government passed Bill C-13 (which includes provisions to fight cyberbullying) through committee, signalling that it it standing firm. The next stage is a final vote before the full Parliament.

In the Spencer decision (named after the defendant in the case), the court unanimously said that when police ask for basic information (like a name, an IP address or a street address) they are committing a search, which demands a warrant.

Immediately after the decision Rogers Communications and several other carriers said they will insist on a warrant from now on.

But Justice Minister Peter MacKay told the committee on Wednesday the government isn’t budging, insisting that the act gives police “modern powers with judicial oversight. There were certainly criticisms and legitimate concerns raised in the past and with respect to the bill about unlawful access online to information. The bill requires judicial oversight. The bill does not create new powers for police that go beyond the Criminal Code. It does not allow for any new online investigation without judicial oversight.”

Geist acknowledged that “that the voluntary warrantless disclosure provision does not directly contradict the Spencer decision, the reality is that it has been rendered largely moot. In other words, the government is touting a legislative solution to assist law enforcement that the police will not use and that telecom companies will ignore.”

The test, then, will be what happens when a police department goes to a carrier and, ask is common, asks to verify a name or address it already has in circumstances that are not an immediate emergency. If the carrier refuses, will the police say it has no right to do so? Will the carrier be charged with obstruction? Will word of the refusal get to the government and a politician use it to shame the carrier?

Or will they only use warrants, as the Spencer case suggests, for emergencies. If so, why include the provision to protect carriers?

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Howard Solomon
Currently a freelance writer, I'm the former editor of and Computing Canada. An IT journalist since 1997, I've written for several of ITWC's sister publications including and Computer Dealer News. Before that I was a staff reporter at the Calgary Herald and the Brampton (Ont.) Daily Times. I can be reached at hsolomon [@]