Concerning the implications to search and seizure of computer data
of proposed amendments in Bill C-17,
"An Act to amend the Criminal Code and to amend certain other Acts,"
known as the Criminal Law Improvement Act, 1996.
Dov Wisebrod, Daniel Shap,
David Fruitman, and John Kingdon,
March 18, 1996.
UPDATE!
- June 11, 1996: Bill C-17 passed Second Reading in the House of Commons.
- June 20, 1996: The Privacy Commissioner of Canada, Bruce Phillips, agrees with our main objection!
Allan Rock is behind a Bill in Parliament that will amend the Canadian Criminal Code. Part of the Bill will revise the law of search and seizure of computer systems and data. The Bill reflects profound ignorance of computers and computer communication.
It has the potential to create conflict with foreign law. It will greatly diminish the privacy rights of Canadians in their electronic information. And it could force people to incriminate themselves by providing the police access to their password-protected or encrypted data.
Not very nice, is it? That's why LoGIC (The Legal Group for the Internet in Canada) has sent the following letter.
March 18, 1996
The Honourable Allan Rock
Minister of Justice
Attorney General of Canada
Department of Justice
239 Wellington Street
Ottawa, Ontario K1A 0H8
Dear Mr. Rock:
Re: Bill C-118 (Later reintroduced as Bill C-17.)
"An Act to amend the Criminal Code and to amend certain other Acts"
The Legal Group for the Internet in Canada ("LoGIC") is a conduit for the exchange of information and ideas about policies concerning emerging communication and information technologies. We are devoted to ensuring informed public, legislative, and regulatory responses to these technologies, which at present are manifest most profoundly in the Internet. We want to ensure that new laws and regulations have no detrimental effects on the free and interactive communication of information.
We are concerned about certain proposed amendments to the Criminal Code contained within Bill C-118 (as it was identified while passing First Reading during the last complete session of the Legislature). Our concerns relate to section 41 of the Bill. Section 41 proposes to amend the existing Criminal Code section 487, which sets out information required for search warrants.
For your immediate reference, we have attached to this letter the text of section 487 as it would appear after being amended. The proposed amendments are highlighted by capitalization. Our comments and recommendations with respect to the substance of these provisions follow.
The proposed amendments would introduce new subsections 487(2.1) and 487(2.2) providing for the search and seizure of computer systems and data. Our primary concern is that the provisions do not adequately reflect the complexities of computer use and communication. In particular, the provisions do not accord with the distributed nature of the medium, including the distribution of users of a particular computer system and the distribution of data accessible by the system. The proposed amendments ignore the globally distributed nature of data and its users.
The new subsection 487(2.1)(a) would provide that a person authorized to search a computer system for data may use any computer system in the building "to search any data contained in or available to the computer system." The quoted language does not distinguish between the two sources of data. However, there is good reason to treat data available to the computer system differently from data contained within it. Data available to the system may be physically located outside of the jurisdiction of the issuer of the warrant, potentially bringing the persons authorizing and conducting the search into conflict with foreign law. A similar concern is identified and addressed in the existing subsection 487(2), which provides for modified search warrants in circumstances where the subject of the search "is believed to be in any other territorial division" within Canada. In the context of the search of a computer system, it is quite probable that the data available to the computer system includes data located in jurisdictions outside of Canada. The international nature of the difficulty calls for a solution beyond that offered by subsection 487(2). It is necessary to have two distinct sets of provisions, one of which governs the search of data "contained in" a computer system and another specifically designed to address the difficulty of searching data "available to" a computer system. The words "or available to" should be removed from the proposed amendment to both subsections 487(2.1)(a) and 487(2.2)(a).
In addition, the proposed amendments do not respect the privacy rights of persons whose data may be contained in or available to the computer system subject to the search. The disregard for privacy rights may be seen in two related ways. First, data available to the system may include data contained in other computer systems and available only by password access to those other systems. The other computer systems may be within the control, ownership, and reasonable expectation of privacy of persons unrelated to the subject and purpose of the search warrant. The provisions thus create a "backdoor" to search computer systems for which a warrant has not directly been issued. Similarly, data contained in the computer system may be subject to the control, ownership, and reasonable expectation of privacy of other persons. For instance, if the computer system subject to the search is used to provide an online service to subscribers, it may contain the private data of those subscribers. This data may include electronic correspondence or other information sent by the subscribers to others, as well as electronic information sent by others to the subscribers. Again, a "backdoor" is created by the new provisions to infringe the reasonable expectation of privacy of both the sender and the recipient of this electronic information.
These concerns are intensified by the language of the proposed subsection 487(2.2). The subsection would provide that any warrant authorizing the search of any building or place also authorizes the search of "any data contained in or available to" any computer system at that location. The proposed language explicitly authorizes the search of computer data without requiring any information to be sworn in support of the reasons for the search. There is no requirement of any substantive review by a judge authorizing the search of data. In effect, the proposed subsection creates a default authorization to search data. Given the problems inherent in any search involving a computer system, a judicial review of the information justifying the search of data is essential in all cases. The authorizing judge must be presented with clear and reasonably precise reasons and guidelines for the intended search and seizure. This is necessary to ensure that both the purpose and conduct of the search is justified. In order to maintain these protective measures in the procedure for authorizing a search, the proposed default authority must be removed.
Finally, we are concerned about the potential for self-incriminatory activity by the person whose property is the subject of a search. Subsection 487(2.1) would authorize the person conducting the search to use the computer system in order to search, reproduce, and seize data. Subsection 487(2.2), while similar, would add that the person whose property is being searched "shall, on presentation of the warrant, permit the person carrying out the search" to use the computer system. It is unclear from this language whether the person whose property is being searched is required to take positive steps to assist the person carrying out the search. Our concern is that the inherent vagueness of the proposed provision allows for such an interpretation. If the computer system is accessible only by first supplying a password, the person may have to supply it. If the data being searched is encrypted, the person may have to provide the decryption key. This would amount to being compelled to assist in the discovery of evidence against oneself, which is inconsistent with the most fundamental principles of criminal law. The proposed amendment should be rewritten to remedy its potentially dangerous vagueness.
Thank you for the time taken to consider our comments and recommendations. We would be pleased to confer with you further. Daniel Shap, a co-founder of The Legal Group for the Internet in Canada, has previously commented at length on this subject. His 1993 paper, entitled "Search and Seizure of Canadian Computer Environments," was prepared for, and is in the possession of, Donald Piragoff of the Department of Justice. It is also available on the Internet's World Wide Web at: http://www.io.org/~logic/papers/ds-srch.htm
The Legal Group for the Internet in Canada may be contacted at the above street and Internet addresses and telephone number. We look forward to hearing from you.
Yours very truly,
[Signed]
Dov Wisebrod
L o G I C
The Legal Group for the Internet in Canada
c.c.
Donald Piragoff
Department of Justice
Bruce Phillips
Federal Privacy Commissioner
Tony Ianno
Member of Parliament
Criminal Code section 487 as it would appear following the amendments.
(1) A justice who is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in a building, receptacle or place
(a) anything on or in respect of which any offence against this Act or any other Act of Parliament has been or is suspected to have been committed,(b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of a person who is believed to have committed an offence, against this Act or any other Act of Parliament, or
(c) anything that there are reasonable grounds to believe is intended to be used for the purpose of committing any offence against the person for which a person may be arrested without warrant,
may at any time issue a warrant under his hand authorizing a person named therein or a peace officer
(d) to search the building, receptacle or place for any such thing and to seize it, and(e) subject to any other Act of Parliament, to, as soon as practicable, bring the thing seized before, or make a report in respect thereof to, the justice or some other justice for the same territorial division in accordance with section 489.1.
(2) Where the building, receptacle or place in which anything mentioned in subsection (1) is believed to be is in any other territorial division, the justice may issue his warrant in like form modified according to the circumstances, and the warrant may be executed in the other territorial division after it has been Endorsed, in Form 28, by a justice having jurisdiction in that territorial division.
(2.1) A PERSON AUTHORIZED UNDER THIS SECTION TO SEARCH A COMPUTER SYSTEM IN A BUILDING OR PLACE FOR DATA MAY
(A) USE OR CAUSE TO BE USED ANY COMPUTER SYSTEM AT THE BUILDING OR PLACE TO SEARCH ANY DATA CONTAINED IN OR AVAILABLE TO THE COMPUTER SYSTEM;(B) REPRODUCE OR CAUSE TO BE REPRODUCED ANY DATA IN THE FORM OF A PRINT-OUT OR OTHER INTELLIGIBLE OUTPUT;
(C) SEIZE THE PRINT-OUT OR OTHER OUTPUT FOR EXAMINATION OR COPYING; AND
(D) USE OR CAUSE TO BE USED ANY COPYING EQUIPMENT AT THE PLACE TO MAKE COPIES OF THE DATA.
(2.2) EVERY PERSON WHO IS IN POSSESSION OR CONTROL OF ANY BUILDING OR PLACE IN RESPECT OF WHICH A SEARCH IS CARRIED OUT UNDER THIS SECTION SHALL, ON PRESENTATION OF THE WARRANT, PERMIT THE PERSON CARRYING OUT THE SEARCH
(A) TO USE OR CAUSE TO BE USED ANY COMPUTER SYSTEM AT THE BUILDING OR PLACE TO SEARCH ANY DATA CONTAINED IN OR AVAILABLE TO THE COMPUTER SYSTEM FOR DATA THAT THE PERSON IS AUTHORIZED BY THIS SECTION TO SEARCH FOR;(B) TO OBTAIN A HARD COPY OF THE DATA AND TO SEIZE IT; AND
(C) TO USE OR CAUSE TO BE USED ANY COPYING EQUIPMENT AT THE PLACE TO MAKE COPIES OF THE DATA.
(3) A search warrant issued under this section may be in the form set out as Form 5 in Part XXVIII, varied to suit the case.
(4) An endorsement that is made on a warrant as provided for in subsection (2) is sufficient authority to the peace officers or the persons to whom it was originally directed and to all peace officers within the jurisdiction of the justice by whom it is endorsed to execute the warrant and to deal with the things seized in accordance with section 489.1 or as otherwise provided by law.
(6) Subsections 487(2) and (4) apply, with such modifications as the circumstances require, to a warrant issued under subsection (1).