Access to Server Data for Foreign Criminal Investigative Purposes

The impacts of privacy sensitivities continue to expand and affect all manner of technology and other transactions transactions. 

Canada and the United States have a long healthy and constructive relationship in providing assistance to the law enforcement agencies of each country in the investigation of cross boarder criminal activity. Canada has, with the United States and with other countries a series of mutual cooperation arrangements (including Mutual Law Assistance Treaties or MLATs) in place between Canadian and U.S. law enforcement by which criminal and terrorist conduct can be investigated and relevant information exchanged.

Such international cooperation is routine and rarely makes the law reports. The recent case of Canada (United States of America) v. Equinix Inc. v. Megaupload Ltd., 2013 ONSC 193 (CanLII), illustrates the operation of and judicial oversight of the MLAT mechanism and how law enforcement efforts to investigate and prosecute criminal conduct intersects with privacy concerns. This case is an attempt by the US government to get delivery to it of 32 servers belonging to Megaupload. These servers had been seized following an international raid on Megaupload during 2012 organized by the US prior to this application. At issue in the Canadian application were the Ontario servers seized under the warrant.

This case was an application by the Attorney General of Canada, on behalf of the United States of America, pursuant to s.15 (1) of the Mutual Legal Assistance in Criminal Matters Act for an order to copy and send certain data to the Government of the United States of America. The Attorney General of Canada brought the application to send mirror copies of 32 servers to US authorities who were investigating an alleged offence of criminal infringement of copyright, conspiracy to infringe copyright, money laundering and racketeering in relation to wrongful dissemination of copyright protected material such as movies and music.

The servers in question were seized by a search warrant. The Respondent did not to dispute the warrant but rather did suggest that there is an enormous volume of information on the servers in question and the act of sending mirror images of all of this data would be overly broad in the face of the slight evidence connecting the servers to the crimes alleged by the US prosecutors.

The US investigation had identified a very complex scheme to disseminate copyright material using a website operated by the Respondent with losses conservatively estimated at $500,000,000.

The servers in question were alleged to be used to process data.

After reviewing Section 15 of the Mutual, the Court noted that where a judge was satisfied that a sending order should not be made then the judge may return the materials to the lawful owner or may alternatively require the materials to be brought before him.

The Court reviewed R v. Jones, 2011 ONCA 632 and noted in that case that the Court had rejected the idea that authority to search a computer gave unfettered access to all data located there. Of importance in the Jones case was that the warrant contained no limiting terms as to which parts of the computer could be searched. The Court stated:

This is not because the warrant should be struck as “too broad”, in the sense that it contained no limitations on the ability of the police to search the computer, and therefore improperly invaded the high expectation of privacy the respondent had in the contents of his computer, as the respondent argues. It is because the warrant itself is properly restricted in the circumstances. Although it contained no limitations on the types of files that could be examined, it was reasonably focused and limited in the types of evidence the police could seek; and that evidence did not include evidence of child pornography.

In the present case the Court held that an analysis of the servers’ content must be brought before the court before such a broad order could be made. The Court therefore required the present motion to be adjourned and the servers were to be returnable before the Court while counsel were given an opportunity to determine the scope of the relevant material which should be copied.