Justice Minister Arif Virani is playing down concerns that a Supreme Court of Canada ruling around internet privacy could hamper police investigations into child sexual exploitation, arguing that the federal government’s new Online Harms Act would help police in such cases.
The Supreme Court ruled earlier this month that police forces must obtain judicial authorization before they can ask companies for internet protocol (IP) addresses, unique identifiers used to route data online that can also be used to find out who those users are. Before the ruling, investigators in Canada often depended on companies voluntarily passing along suspicious IP information.
The ruling has been criticized by dissenting high-court judges and provincial justice officials for its potential to make investigating child exploitation more difficult, since those cases depend on a high degree of access to data.
Days before the ruling, the government published the details of Bill C-63, also known as the Online Harms Act, which would direct online companies and internet service providers to relay to law enforcement transmission data – which would include IP addresses – associated with content that is “manifestly child pornography.”
The new legislation will facilitate prosecutions in child-exploitation investigations that are started when companies suspect such material is transiting their networks because it enhances their obligation to report to police suspicious internet protocol addresses, Mr. Virani said during an interview this month with The Globe and Mail’s editorial board.
Mr. Virani said the online harms provisions requiring internet service providers to hand over IP data are not at odds with the Supreme Court ruling, which related to an online fraud case known as Bykovets. But he did not speak to what effect the new ruling could have on other kinds of child-exploitation investigations by police, who currently use an array of methods to access and relay the IP data about such suspects.
Federal Justice Department officials later confirmed they believe that, under the Online Harms Act, judicial warrants would not be needed by police to obtain IP data from technology corporations who suspect that their users may be circulating images of child exploitation.
“When there’s a takedown and child sexual exploitation in general, pursuant to this bill becoming law, what will happen is that the transmission data of that material, including the IP address, will be provided to the RCMP,” Mr. Virani said.
Online crime is rising in Canada, and gathering IP addresses – strings of numbers that route data to connected devices – is often one of the first steps for police investigating crimes that take place over the internet. Knowing a suspicious IP address allows detectives to ask a judge to order telecom companies to hand over customer data to show who was using a specific IP addresses at a given time.
The Supreme Court on March 1 issued a 5-4 ruling that means the days of easy police access to this raw data are over. The top court ruled that IP addresses should be considered private and that police now need court orders to obtain them from corporations. The majority of judges on the Supreme Court case acknowledge that online child exploitation is a scourge, but they ruled that IP search-warrant requirements are necessary and not onerous.
“We are deeply concerned about the impact that the Supreme Court of Canada’s decision may have on the ability of police to investigate online crimes,” Lianna McDonald, executive director, of the Canadian Centre for Child Protection, said in a statement. The centre, based in Winnipeg, has authority under law to assist police in putting together such investigations.
The Supreme Court case did not consider the Online Harms Act because it was not yet law and did not affect the criminal case they were reviewing. The new bill will have to go through several readings in Parliament and be the subject of committee hearings before it becomes law.
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In the Bykovets case that the top court decided, the Ontario and B.C. governments filed intervenor briefs arguing that any new IP warrant requirements could cause police probes to fall apart.
“The stable investigative framework governing child pornography investigations will be disrupted,” wrote lawyers Micah Rankin and Michael Barrenger on behalf of the Attorney-General of British Columbia. In an intervenor brief, they wrote that Big Tech companies such as Google, Microsoft, Facebook and Instagram could now potentially face roadblocks if they tried to relay suspicious IP addresses to Canadian police.
Companies and police agencies contacted by The Globe did not reply to questions about the impact of the Supreme Court ruling. “Microsoft has no comment at this time,” said spokeswoman Julia Perreira.
The RCMP is “aware of the SCC decision and are examining the possible impacts. We have no further comment at the moment,” said spokesperson Robin Percival.
A 2011 law passed by the Conservative-led Parliament first required internet service providers in Canada to notify police if they believed that child exploitation imagery was transmitted via their networks.
The mandatory reporting law requires companies to flag and hold imagery, but there is currently no legal requirement for companies to relay IP addresses to authorities. The Online Harms Act is an attempt to close that gap in the law.
The proposed legislation says that in cases involving content that is “manifestly child sexual abuse and exploitation material,” an affected corporate entity must relay “a document containing any transmission data.”
The Globe and Mail spoke to a half dozen legal experts who had differing opinions on the compatibility of these laws and the new Supreme Court ruling, saying the effects of the changes are difficult to foresee. Most observers are expecting more criminally accused people to challenge how evidence was amassed against them. “Lawyers are and will be reviewing their cases now in light of Bykovets,” says Maya Shukairy, a defence lawyer.
Justice Department officials maintain that provisions in the Online Harms Act requiring the handover of data such as IP addresses would not be affected by the Supreme Court’s new requirement for warrants.
The legal language of the bill “would provide reasonable lawful authority for police to acquire transmission data, including IP addresses related to child-pornography offences,” said Aurora Chiu, a Justice Department spokeswoman.
The debate over the level of access police should have to users’ IP addresses may impact huge volumes of data that are often used in online police investigations.
“From April 2014 to March 2021, criminal courts in Canada processed more than 30,000 charges related to sexual offences against children likely committed or facilitated online,” Statistics Canada said in a recent report.
Such cases represent a small percentage of the overall tips police receive. Authorities who probe child-exploitation cases do not have the capacity to run down all leads and most investigations do not result in charges. Nor are most charges proven in court. “The rate of these online child sexual exploitation incidents reported to police had quadrupled between 2014 and 2022,” the Statscan report says.
Colin Freeze