B.C. Court of Appeal grants Crown appeal in RCMP attempt to discover identity of Craigslist advertiser

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      B.C.'s highest court has overturned two lower-court rulings offering a measure of protection for the identity of a person who placed a classified advertisement on an online website.

      The case concerned the RCMP's attempts to obtain a production order in the B.C. courts for records from Craigslist, which is a San Francisco-based company.

      At the time, the Mounties were investigating serious criminal offences facilitated through the use of the Internet.

      The RCMP wanted the Craigslist advertiser's name or physical address, email address, IP address, phone numbers to verify the account, dates and times that the post was created, and the record of the posting.

      This application was refused by Provincial Court Judge M.J. Brecknell on jurisdictional grounds.

      That's because Craigslist does not have a physical presence in B.C.

      The lower-court judge noted that a Supreme Court of Canada ruling in a case against Google didn't apply in this instance because that concerned a civil matter. The RCMP's application concerned a criminal matter.

      The Provincial Court ruling was upheld after the Crown filed an appeal in B.C. Supreme Court.

      However on January 9, a three-judge B.C. Court of Appeal came to a different conclusion.

      The panel allowed the Crown appeal, saying the RCMP request should be remitted to the Provincial Court for reconsideration "in accordance with these reasons". 

      "I do not think that Parliament, when it turned its mind to the ability of production orders to reach foreign stored information, intended a result that would frustrate legitimate investigation, particularly where that investigation requires prior judicial authorization to protect privacy interests," wrote Justice David Harris for the panel. 

      The B.C. Court of Appeal ruling noted that Craigslist "is willing to respond to production orders issued in British Columbia and has provided information in response to court orders in the past".

      "Craigslist requests that peace officers submit production orders by email to their offices in California," the decision stated. "A number of other American Internet service providers are willing also to produce documents on a similar basis, although each have physical locations or offices where a production order can be served in Canada."

      In the ruling, Harris acknowledged that the B.C. Court of Appeal panel did not know if the data being sought is stored on a server in the U.S. or if it's kept offshore.

      "Even if instructions to retrieve the data could be given from California or the data could be electronically retrieved from California, we do not know which jurisdiction the data would be retrieved from," he wrote.

      The attorney general's appeal was based on Brecknell's statutory interpretation that an Internet company must have a physical presence in Canada for it to be subject to a production order. It also concerned Brecknell's view that a production order could not be issued against those with only a virtual presence in the province.

      On behalf of the B.C. Court of Appeal panel, Harris addressed the issue of Craigslist's virtual presence in B.C. and how this relates to extraterritorial legal requirements.

      "There is no question that there is a real and substantial connection between Craigslist and British Columbia arising from Craigslist’s virtual presence in British Columbia to conduct business," Harris wrote. "That real and substantial connection is sufficient to provide personal jurisdiction over Craigslist." 

      He concluded that a production order "may be seen as more akin to a subpoena requiring a person within the jurisdiction to make disclosure of documents in a certain place".

      "Additionally, I do not think that a principled and effective system of legitimate investigation based on international norms should be contingent on business decisions taken by service providers in their own private interest," Harris declared near the end of the B.C. Court of Appeal ruling. "It is notorious that service providers move customer information around the world frequently, no doubt for entirely legitimate commercial reasons, and it seems frequently break up data storing it in a variety of different places. The result may be the effective, if unintended, frustration of investigation into serious criminal conduct."