A woman uses her cellphone in downtown Toronto September 03 2013. Photo by: Fernando Morales/The Globe and Mail.Fernando Morales/The Globe and Mail
Rogers Communications Inc. is right to ask whether it has to provide – free of charge – the RCMP and other police forces with what amount to archival search services into the contents of the cellphone calls and Internet activities of its customers.
Since December, with the passing of Bill C-13 – the confusingly named Protecting Canadians from Online Crime Act – there has been an imperfect but fairly clear regime for the judicial granting of warrants to search the electronic communications of Canadians.
That is progress. There should no longer be any more informal "requests" from the police to telecommunications companies, or unduly deferential compliance.
Last May, Rogers said it would charge fees to the police, starting on Aug. 1, to search what amount to vast databases. The company said it would carry the cost of responding to most search warrants but would charge "minimal" fees in some cases.
The Canadian Association of Chiefs of Police responded by saying the country's police forces would not pay such fees. Rogers backed off, but said that "where possible" it would recover the costs of location tracking of mobile devices. Kevin Spafford, a Rogers spokesman, told The Canadian Press, "In some cases, we charge a minimal fee to recover our costs based on the work required to comply with requests."
That's not very clear. Surely the company would want compensation for some of the more time-consuming and expensive searches. If so, the amounts would hardly be "minimal" – more, say, than an urban bus fare.
The police are relying on a Supreme Court decision in 2008, which had to do with judicial orders (fairly novel at the time) to produce certain financial or commercial documents. Telus Corp., another telecom (as it happened), objected to digging them up for free. (BCE Inc. has a 15-per-cent interest in The Globe and Mail.)
The Supreme Court pointed out that the Criminal Code doesn't allow for such payments – but then it turned around and said that when a company is a "repeated target" of these orders, the cumulative impact could be so burdensome as to justify compensation.
Telecoms are indeed "repeated targets" of search warrants. The police forces and the telecoms should work out a deal.