Court to decide whether police can access Facebook messages

The ruling of a London, Ontario court on a murder case may determine whether law enforcement can access individuals’ Facebook messages as part of investigations.

In the case, London police want to use Facebook messages as evidence during the trial, and have filed a production order to Facebook Canada requesting the data.

However, the social media behemoth declined, saying that it will not abide by the order because it is an American company that stores its data in the US.

To gain access to the data, Facebook told Canadian authorities to go through the mutual legal assistance treaty (MLAT) process. The process, which is usually used for physical evidence, requires Canadian authorities to request that American authorities ask the FBI to compel Facebook to turn over the data. The American part of that process takes at least 10 months, the report said.

“There is conflicting law on this question, and it really comes down to how broadly do you read the production order power in the Criminal Code to apply to persons or companies outside of Canada who store data outside of Canada, as opposed to insisting that law enforcement go through the traditional treaty process established by the MLAT process,” Gerald Chan, a Toronto-based criminal and constitutional lawyer focusing on digital privacy, told CBC. “This case is of huge precedential importance both for police and for tech companies like Facebook.”

Two previous cases have dealt with Canadian authorities’ access to data stored outside its borders. According to Chan, the two cases were ruled differently, which is why this Ontario case is being closely monitored.

The first case, in British Columbia, the Court of Appeal ruled that a “virtual presence” in Canada was enough to require a company, in that case Craigslist, to submit to a production order.

Meanwhile, for the second case in Newfoundland and Labrador, the court refused to issue a production order to a California-based firm because it found the order would be unenforceable outside Canada.

“From the tech companies' perspective, it's not that they want to impede the investigation, but it's that they are, by virtue of the nature of what they do, they are servicing customers all over the world, and they have quite an understandable concern about being the subject of all sorts of court orders from all over the world just because they have a virtual presence in those jurisdictions,” Chan explained.

The Ontario homicide case is currently on hold, as courts have yet to decide on how to deal with digital evidence.