Justice committee  I believe I've said a number of times I'm not concerned at all about the preservation. I think it's important to not confuse the preservation with the providing of the information. From what I understand, that 1.2 million has nothing to do with preservation. It has to do with information that has been provided.

Justice committee  Certainly I think that there is a lot going on in this bill, and it might be easy to confuse the different pieces of it. Certainly there's a lot to be said for looking at each of them very closely. A preservation order is of a different nature from a production order. I don't think there's any doubt.

Justice committee  Thanks very much for the question. I agree that in virtually every circumstance in which government or law enforcement agencies obtain the information about an individual when that individual is not informed at the time, they should be informed within six months—six months seems to me a reasonable interval of time—unless the law enforcement agency or government agency can convince a judge that providing that notice at that time would in fact impede a current, ongoing investigation.

Justice committee  —it's the accused, with respect to whatever their activities were. The crown will point to the terms of use of the Internet service provider if it's to their benefit to do that. In some cases, some Internet service providers put in black and white in their terms of service that they reserve the right to provide information to law enforcement under certain circumstances and that may be triggered, the idea being not because it has anything to do with the service provider, but that it reduces the expectation of privacy on the part of the individual with respect to their charter rights, with that section 8 of the charter being engaged.

Justice committee  —but certainly it has been pointed to as a basis for diminishing that expectation. I guess it takes three to tango, in that case.

Justice committee  It would depend upon the form of liability. Certainly, one can consent, as long as it's informed consent, to what would otherwise be an intrusion upon your seclusion. If you agreed that somebody could do something to you that would otherwise be an invasion of your privacy, it would be very likely that this would be the defence set up with respect to any sort of lawsuit.

Justice committee  It may be, and if one wants to accomplish this result, as I said, one could amend PIPEDA, or one could maybe convince the telcos to put in their terms of service that this information will be handed over in bulk, which I don't think Canadians have an appetite for.

Justice committee  Let me just flip to exactly what I said in my opening statements. I think it needs to be that the person knew or ought to have known that the individual in the images did not consent. I think that in a lot of cases it is the initial sharer of those images, or somebody who knows the victim, where it is in fact most egregious and probably crosses the line into a criminal violation.

Justice committee  No, I think my conclusion actually comes down to the blameworthiness of the conduct.

Justice committee  The guilty mind: somebody who knew, somebody who was in fact betraying a trust. That in my mind reaches a level of criminal culpability. Somebody who has no idea, and no reason to know? You don't criminalize that sort of conduct.

Justice committee  My understanding is that of that number of 1.2 million, a large portion of them relate to a special law enforcement database that is essentially the same as Canada 411, where it's non-private information. It's stuff that would already be in the phone book, but it's just immediately up to date and it's accessible.

Justice committee  I'm happy to, but I don't think the two are analogous at all. The reason is that if I as a private citizen see a crime taking place, I don't have a legal duty to, but I certainly can pick up the phone, call 911, and report it.

Justice committee  Or even if I suspect: any private citizen can do that. Because I'm not subject to PIPEDA. I'm not an organization subject to privacy legislation, and I don't have a contractual relationship with the people in that room who say, “I will keep your information private.” What you're talking about, on the other hand....

Justice committee  The provider can do that and, in my view, the provider should do that, but again, it's an important distinction between who is reporting the crime and who is being asked for the evidence.

Justice committee  Certainly, and again, the distinction is when the police request it rather than at the initiative of the organization.... In a number of the cases that are reported where the police have asked for customer information without a warrant, when it finally goes to trial, it's not the telco that's on trial in these cases—