Search and Seizure of Computer Data

The original version of a badly edited article published in
Legislative Update, Report 96-08, April 30, 1996,
Osler, Hoskin & Harcourt

Dov Wisebrod

Search and Seizure of Computer Data

The power of a search warrant for computer data is being expanded by the federal government.

The most recent effort is part of the Criminal Law Improvement Act, 1996, which passed First Reading in the House of Commons on March 8 as Bill C-17, "An Act to amend the Criminal Code and to amend certain other Acts." The key idea is best expressed in the new subsection 487(2.1)(a), added to the Criminal Code, R.S.C. 1985 c. C-46, by Section 41 of the Bill:

A person authorized under this section to search a computer system in a building or place for data may 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.
Virtually identical language has already been included in the following statutes, as amended:

The emphasized clause has significant implications because the phrase "or available to" ignores certain realities of computer communication. Information retrieval and data processing is a distributed and decentralized activity. The volume of data available to computers is growing dramatically, as is the number of sources of that data. As a result, the scope of a search warrant for a computer system under the new regime is extremely broad.

Since any data contained in any computer anywhere in the world is available to any other computer located anywhere else, when each has a modem and a phone line, virtually all data would be covered by a warrant which on its face identifies only a particular computer system. All information on the Internet, online services and information databases would be covered.

Especially vulnerable is the information security of parties involved in electronic data interchange (EDI) and outsourcing of data processing. Such arrangements typically involve the creation of digital communication lines between two or more parties. Inherent to the functioning of the system is making the data of one party available to the computers of another. If a search were to be conducted of one party's computer system, the data of other parties could also be searched, even if they were not named in the warrant.

The constitutional validity of the new provisions is doubtful because they authorize search and seizure of things without a warrant precisely identifying those things. The potential exists for a court-authorized search conducted in a manner consistent with the new provisions to violate "the right to be secure against unreasonable search and seizure." (Canadian Charter of Rights and Freedoms, s. 8)

It is unlikely that the amendments in Bill C-17 will be modified, because identical language is already in force in several statutes. However, the Computer Records Task Force of the Canadian Bar Association's National Competition Law Section is preparing a critique of the provisions that appear in the Competition Act. The critique will be equally applicable to every statute in which they appear.

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