117TH INTERNATIONAL SEMINAR
VISITING EXPERTS’ PAPERS

THE IMPACT OF THE DIGITAL AGE ON MONEY
LAUNDERING INVESTIGATIONS
Daniel P. Murphy *I. INTRODUCTION
In the film Jerry Mcguire one of the main
characters uttered a phrase that
popularises the criminal’s justification for
most profit motivated crimes “SHOW ME
THE MONEY”. The volume of cash in
many criminal activities creates a problem
for the criminal and their advisors.
What is we look at currency as nothing
more than pieces of paper? Nations standbehind the value represented by the paper
but it remains paper. I am not intimatelyfamiliar with national or international
finances. My knowledge of banking is
minimal and personal, rather thanprofessional. On the other hand, myexperiences tell me that drug traffickers
need to move their currency for a varietyof reasons. This gives the State an
investigative opportunity. It also provides
an opportunity to forfeit a criminal’s cash.
These are two different issues.
The simple fact is that a dollar bill, or a
$20 dollar bill, weighs a gram. The weightof currency in a drug transaction, at thehigher levels, is greater than the weight ofthe drugs. This creates it own security risk.
The cash has to be moved around the world.
It has to be converted into other currency.
Cash should be seen as a businessinconvenience.
Cash is an important justification forevery currency transaction reporting
systems.1 Canada recently revised and* Senior Counsel, Strategic Prosecution, Policy
Section, Justice Canada, Canada

replaced its Proceeds of Crime (Money
Laundering) Act.2 That law will cover cashtransactions, which occur in a variety ofbusiness sectors.3 The Regulations containthe implementation provisions for this new
anti-money regime. In the anti money
laundering environment the regulation of
the financial sector is more than a means
to test a financial institution’s institutional
stability or its “know your customer”
policies.
Canada’s new law and its ancillary
regulatory package will establish somecash transaction reporting requirements in
Canada. Essentially, transaction reporting
will be triggered by proscribed amounts ofcash, deposited or involved in a transaction.
In addition, Part 11 of the Act will establish
a regime to gather information concerning
the cross border movement of cash andmonetary instruments.4 The provisions in
the regulatory package will eventually
evolve beyond concerns on paper currency

1

FINCEN recently released A Survey of Electronic
Cash, Electronic Banking and Internet Gambling,an excellent review of the field. http://
www.ustreas.gov/fincen/e-cash.pdf
2 S.C. 2000, C. 17
3 Section 6 specifies that persons subject to the Act
will keep and maintain records. The Act improves
upon and replaces the previous Proceeds of Crime(money laundering) Act and Regulations. Statutesof Canada 1991,c.26, in R.S.C 1985, C. P-24.5 asamended. (see http://canada2.justice.gc.ca/en/laws/
P-24.5/79312.html )4 Section12 specifies that the part will deal withcurrency or monetary instruments greater than aproscribed amount.

303

RESOURCE MATERIAL SERIES No. 58
and address the new world of digital cash.
This law depends upon currencytransaction reporting and the ancillaryfinancial institution record keeping
requirements. It will include emerging
issues as they impact on the money
laundering issue. In fact, three emerging
issues have developed and each connects
to the emerging digital age. These are:(i)

The issue of personal information
protection in the digital age.
(ii) The issue of an investigator ’s
capacity to capture digitalcommunications, and(iii) The ability for individual’s to moveand conceal digital information.
Consider this last issue, for a minute. A
letter or a fraudulent receipt can be used
to acquire money. Good documentary
evidence is the essence of a financial crime
investigation. Investigators will look underthe bed; search file cabinets andcontinually seize the paper. After all it is
the best evidence. In the last decade thesearch for documents has been frustrated
by the evolution of the digital age. You now
need to search computers yet the Internet
and data safe havens can easily convert apersonal computer into an expensive
paperweight. The State’s ability to search
the Internet and seize Internet
communications is a common concern for
all nations. It is also new territory.
Unfortunately, this territory ignores
national borders yet national laws depend
upon borders. In this paper I will attempt
to raise some issues with respect to thethree emerging issues set out above.
How does the digital revolution impact
on the investigative imperatives of themodern world? That is a question everyone
must ask since the entire world has jumped
into a digital whirlpool. This is especially304

important in an era the individuals
response is to demand that states enact
laws to protect individual privacy.
II. PERSONAL PRIVACYPROTECTION
Hollywood movies suggest that nothingis secure from the intrepid Internet searchengine and a sophisticated digitaldetective.5 Canada’s Constitution includes
a Charter of Rights and Freedoms, which
impacts upon the ability of the state tosearch and seize information which
includes a reasonable expectation ofprivacy exists.
In a 1993 case, R. v. Plant,6 the Supreme
Court of Canada held that Canada’s s. 8Charter protected a biographical core of
personal information maintained by acommercial enterprise, in certain
scenarios. In Plant the police obtainedhydro consumption records from a city
utility company without a search warrant.
Justice Sopinka, for the majority, opinedthat the Charter protected a biographicalcore of personal information from the State.
He opined as follows:“The United States Supreme Court
has limited application of the Fourth
Amendment (the right against
unreasonable search and seizure)5

Coincidentally, as I was finishing this brief paper
my local newspaper arrived with an insert
magazine called Backbone-Premier issue. It
contained a short article by Sheldon Gordon, Diaryof a Digital Detective. The article described afictional denial of service attack against a Canadianon-line grocery service business. I suspect that a
future article could be on how a person can accesspersonal information from any computer. The issue
is that computers make our lives easier while theyrisk our privacy.
6 h t t p : / / w w w. c a n l i i . o r g / c a / c a s / s c c / 1 9 9 3 /1993scc96.htm

117TH INTERNATIONAL SEMINAR
VISITING EXPERTS’ PAPERS
protection afforded by the UnitedStates Constitution to situations inwhich the information sought by stateauthorities is personal andconfidential in nature: United Statesv. Miller, 425 U.S. 435 (1976). Thatcase determined that the accused’scheques, subpoenaed for evidence
from a commercial bank, were notsubject to Fourth Amendment
protection. While I do not wish to betaken as adopting the position thatcommercial records such as cancelledcheques are not subject to s. 8
protection, I do agree with that aspectof the Miller decision which would
suggest that in order for constitutional
protection to be extended, theinformation seized must be of a“personal and confidential” nature. In
fostering the underlying values ofdignity, integrity and autonomy, it isfitting that s. 8 of the Charter shouldseek to protect a biographical core of
personal information which
individuals in a free and democraticsociety would wish to maintain andcontrol from dissemination to thestate. This would include information
which tends to reveal intimate detailsof the lifestyle and personal choicesof the individual. The computer
records investigated in the case at bar
while revealing the pattern ofelectricity consumption in theresidence cannot reasonably be said
to reveal intimate details of theappellant’s life since electricity
consumption reveals very little about
the personal lifestyle or private
decisions of the occupant of theresidence. ”
Commercial businesses, including
financial institutions, collect a significant
amount of personal information on theircustomers. Traditional businesses
obtained personal information, via papertransaction or otherwise. They obtainedthat information for their credit files:
customer preference files: and otherreasons. E Business obtains the same
information electronically. They could also
capture essential information the momentthat an individual accessed the business’s
web site. Frequently, an Internet businessi n c l u d e s a s p e c i f i c p r i v a c y p o l i c y.
Individuals had an opportunity to
acknowledge that they have read andagreed to the site’s privacy policy. I often
wonder who takes the time to read thoseprivacy statements and policies.
The result is that individuals havegrown concerned with the Wild West typeof privacy infringement, which they
perceive exists in the commercial world.
Nations have responded to this perception.
Type in Information Privacy on an Internet
search engine and you access thousands ofhits.7 You could also immediately accessthe Council of Europe’s Directive 95/46.8
You will quickly note a significant
movement to protect the “data subject’s”(i.e. a Counsel of Europe expression)
privacy. Their Directive specificallyrequires that third countries receiving data
adopt an adequate level of protection for
personal information.
III. CANADA’S LEGISLATEDRESPONSE TO PERSONALINFORMATION
Canada recently enacted its Personal
Information Protection and Electronic
Documents Act.9 Part 1 of this law (which
I will describe as the PIPED Act)
establishes a right of protection for
personal information collected, used or7

One interesting site I discovered was Privacy andthe Information Highway, by Ian Lawson at http://strategis.ic.gc.ca/SSG/ca01021e.html
8 http://www.privacy.org/pi/intl_orgs/ec/eudp.html
and save a lot of time.

305

RESOURCE MATERIAL SERIES No. 58
disclosed in the course of commercial
activities. It establishes principles togovern the collection, use and disclosure of
personal information. The accuracy of any
records holding personal information is asignificant issue of concern in the PIPEDAct. It also requires businesses to provide
adequate security for records containing
personal information. It requires businessto make information management policies
readily available. In addition, business was
required to provide individuals with accessto information about themselves. It further
provides that a Privacy Commissioner
could receive complaints concerning
contraventions of the Act’s principles;
conduct investigations; and attempt toresolve such complaints. Unresolved
disputes relating to certain matters can betaken to the Federal Court for resolution.
A. Some Details on the Act
The PIPED Act came into force on
January 1, 2001. It specifically covers
banks; other federally regulated financial
institutions; and other federal businessorganizations. Transitional provisions
provide that all other Canadian businesses
will become subject to that law within three
years. This law controls the businesscollection of personal information and thesubsequent use and disclosure of suchinformation. The PIPED Act will have asignificant impact on how a business uses
the personal information it collects. It will
also have an impact upon investigations
since it applies the concept of personal
information protection and access, in amanner that is similar Canada’s Privacy
Act.10B. Business Records Impact
The PIPED Act establishes two resultsthat have yet to be fully appreciated. The
9

S.C. 2000 c. 5, http://canada.justice.gc.ca/en/laws/
ann_stat.html
10 R.S.C. 1985, c. P.21, as amended.

306

first impacts upon businesses. Everybusiness must convert their record keeping
systems into a personal information
retrieval system. Their customers have aright to access all their personal
information held by the business.11 Thatbusiness must assist the individual in
preparing the access request, if necessary.
In addition, the “organization” 12 must
respond to an individuals access request
with due diligence and in any case not later
than thirty days after receipt of therequest.13
The business must insure that theirrecords are accessible. In addition, they
had better insure that the personal
information they collect, use and disclose
is accurate; used in the manner intended;and properly disclosed.14 The individual,
in addition to their right to access theirpersonal information, has a right tocomplain to the Privacy Commissioner.
The Commissioner has the statutory right
11 PIPED Act, Section 8 allows individuals to submit

written requests for access to a business
12 PIPED Act, Subsection 2 defines an “organization”

to include an association, a partnership, a person
and a trade union. Section 4 then provides that
the Act applies to any “organizations” that collects
personal information. Section 2 defines personal
information to mean “information about an
identifiable individual, but does not include thename, title or business address or telephone
number of an employee of an organization”. Finally,
since personal information is contained in records,
section 2 defines records, in an expansive definition,
to include any correspondence, memorandum, book,plan, map, drawing, diagram, pictorial or graphic
work, photograph, film, microform, soundrecording, videotape, machine-readable record andany other documentary material, regardless ofphysical form or characteristics, and any copy of
any of those things.
13 PIPED Act, subsection 8(3).
14 PIPED Act, section 7 controls the collection use anddisclosure of personal information.

117TH INTERNATIONAL SEMINAR
VISITING EXPERTS’ PAPERS
to investigate the individuals complaint
and take the matter to Court.15 Finally,
the court has the power to remedy thecomplaint Section 16 of the PIPED Act
allows the court to:
(a)

(b)

(c)

order an organization to correct its
practices in order to comply withsections 5 to 10;
order an organization to publish a
notice of any action taken or
proposed to be taken to correct its
practices, whether or not ordered
to correct them under paragraph(a); andaward damages to thecomplainant, including damages
for any humiliation that thecomplainant has suffered.

There have not been any decisions, todate, since the Act came into force at the
beginning of 2001.
Current reality, vis-à-vis businessrecords, is that individuals have a very
difficult challenge obtaining access. Law
enforcement has a similar challenge. In
light of the Charier, and the courts ability
to determine that personal information
accessed from a commercial enterprise goesto the biographical core of information
deserving of protection, the police arealways well advised to access businessinformation under the authority of awarrant. The problem is that the records
are not readily available. Frequently thepolice wait, in sufferance, while therequired record is retrieved. The law will,over time, compel organizations to shift
their record-keeping paradigm toward
accessibility. Accessibility by law
enforcement will be improved.

15 Sections 12 to 15.

C. Impact on the Police
I indicated that there were two
unexpected impacts as a result of the
PIPED Act. The Act controls how businessdiscloses personal information theyretained. If law enforcement obtains accessto personal information held by a business,they may have to disclose that fact if theperson asks for instances where theirinformation is used. This will have an
unexpected impact upon law enforcement.
The essence of the PIPED Act is that
individuals should have the right to know
the use and disclosure activities of any
business that retained their information.
Organizations are required, under the
PIPED Act, to advise their customers, upona request from the customer, with respect
to any business use of personal
information. Subsection 7 (c); (c.1); (d); and(e) authorise disclosure without consent.16
The individual, however, retains the rightto access their personal information recordin the organization and determine if theorganization has made any disclosures
under the authority of subsections7 (3)(c)to (e).
This means that a police investigativeinterest, even if the police used a warrant
that authorised a surreptitious disclosure,16 The relevant sections read as follows:(c) required to comply with a subpoena or warrant
issued or an order made by a court, person or
body with jurisdiction to compel the productionof information, or to comply with rules of court
relating to the production of records;(c.1) made to a government institution or part ofa government institution that has made a request
for the information, identified its lawful authority
to obtain the information and indicated that(i) it suspects that the information relates tonational security, the defence of Canada or the
conduct of international affairs,(ii) the disclosure is requested for the purposeof enforcing any law of Canada, a province ora foreign jurisdiction, carrying out an

307

RESOURCE MATERIAL SERIES No. 58
should be disclosed to a requesting
individual. Indeed, any competentcriminal or criminal organization, might,
as a matter of routine, file PIPED Act
section 8 requests to determine if theorganization has disclosed to authorities.
This can be equated to an early warning
mechanism for interested individuals.
The PIPED Act responded to thispossibility by allowing the organization to
notify the authorities about an accessrequest and delay access pending adecision, by the authorities to object.17 I
will not set out the specific provisions but
the result is that law enforcement must
create some type of system to respond to abusiness’s notification about accessrequests. If the deadline to object passes
without an objection from the relevant
authority the business must tell the person
investigation relating to the enforcement of
any such law or gathering intelligence for the
purpose of enforcing any such law, or(iii) the disclosure is requested for the purposeof administering any law of Canada or aprovince;(d) made on the initiative of the organization to
an investigative body, a government institution
or a part of a government institution and theorganization(i) has reasonable grounds to believe that the
information relates to a breach of anagreement or a contravention of the laws ofCanada, a province or a foreign jurisdictionthat has been, is being or is about to becommitted, or(ii) suspects that the information relates tonational security, the defence of Canada or the
conduct of international affairs;(e) made to a person who needs the information
because of an emergency that threatens the life,
health or security of an individual and, if theindividual whom the information is about is alive,
the organization informs that individual inwriting without delay of the disclosure;
17 PIPED Act, subsection 9(21.) to 9 (2.4).

308

who made the request about the earlier
disclosure to law enforcement.
D. Suspicious Transaction
Reporting
There is one other aspect to the PIPEDAct. It contemplates consent disclosure,
informed consent and a confirmation of thefact of a disclosure to law enforcement.
Recall however, that Canada’s new
Proceeds of Crime (Money Laundering) Act
create a suspicious transaction reporting
requirement and a new tipping off offence.18
Section 97 of that Proceeds of Crime (Moneylaundering) Act includes conditional andconsequential amendment to the PIPEDAct. It adds a subsection 7(3) and9(2.1)(a)(I), (2.3) and (2.4)(c)(I) to
specifically cover suspicious transaction
reporting.
IV. THE GROWTH OF INTERNETCOMMUNICATIONS ANDCYBERCRIME
There is a phenomenal amount ofliterature on the Web concerning the
growth of cybercrime. The United States’
National Information Infrastructure
Protection Act of 199619 illustrates how
significant a problem this is for one
jurisdiction. At the 10th United Nations
Conference on Prevention of Crime andTreatment of Offenders’ Computer Crime
Workshop, last April, the Attorney Generalof Canada summarised the problem
created by the Internet and the personal
computer in a few words. The Attorney
General advised the group that:
Computer networks, and the Internet,
in particular, have managed to shrink our
18 S.C., 2000, C.

17. Section 8 creates an offence todisclosure that a suspicious transaction report has
been made.
19 18 U.S.C. 1830 http://www.cybercrime.gov/
1030_new.html

117TH INTERNATIONAL SEMINAR
VISITING EXPERTS’ PAPERS
vast world. Today’s technology allows us
to share information with people in othercountries, and on other continents withminimal expense.
With the internet the possibility now
exists for people all over the world to haveaccess to the stores of knowledge andproducts and services that were once only
accessible by a very few. This possibility
has provided new opportunities to draw theworld together. The emergence of ecommerce is allowing small businesses
around the world to compete with theirlarger competitors.
But, the Internet has also createdcorresponding opportunities for criminals.
Like everyone else, criminals haveembraced high technology to further theirgoals. We are becoming increasingly awareof the threats posed by the Internet. Hate
literature and child pornography can bedisseminated easily. Even traditional
crimes such as fraud and forgery can now
be committed with the Internet.
In October 1999, the G8 Ministers ofJustice and the Interior adopted a set ofprinciples on transborder access to storedcomputer data. The principles cover many
issues relevant to computer evidence;
including, the secure rapid preservation ofdata, and transborder access to data
through expedited mutual assistance, andin some cases direct transborder access incases of public internet sites or withconsent of an authorized user.
On March 28, 2000 F.B.I. Director LouisFreeh made a statement on the Record
before the United States’ Senate
Committee on Judiciary.20 The Director
analysed the problems created by thecybercrime phenomenon. I can not improve
20 http://www.fbi.gov/pressrm/congress/congress00/

cyber032800.htm

upon his excellent overview andrecommend the statement for anyone
seeking a general description of the issues.
I can only add that nations must consider
this problem or recognize the reality that
their borders and sovereign interests arecompletely artificial.
Concomitantly to the 10th United nations
Convention; the work of the Ministers ofJustice and Interior and the efforts in the
United States, the Council of Europe, overthe last three years, has been negotiating
a draft Convention on Cyber-crime, which
will be open to signature to all of its
members and to non-member states.
The purpose of the Convention is “todeter actions directed against theconfidentiality, integrity and availability ofcomputer systems, networks and computer
data, as well as the misuse of such systems,
networks and data, by providing for thecriminalisation of such conduct, as
described in the Convention, and theadoption of powers sufficient for effectively
combating such criminal offences, byfacilitating the detection, investigation andprosecution of such criminal offences atboth the domestic and international level,and by providing arrangements for fast andreliable international co-operation.”21
In particular, the Convention has four
major components:(1.)

Requiring State Parties tocriminalise certain forms of abuseagainst computer systems (i.e.,
illegal access, illegal interceptionof communications, datainterference, system interference
and misuses of hacking and virus

21 The most recent public draft of this convention, i.e.

version 25, can be accessed at: http://
conventions.coe.int/treaty/EN/projets/
cybercrime25.htm

309

RESOURCE MATERIAL SERIES No. 58

(2.)

(3.)

programs and devices) and certain
forms of crimes committed throughthe use of computer systems (i.e.,f o r g e r y, f r a u d , p r o d u c t i o n /distribution/possession of childpornography, and infringement of
copyright as defined undernational law pursuant to fulfilling
obligations under a number of
specific copyright treaties).

investigation and prosecution ofConvention offences and any
offence in respect of which evidence
is in electronic form (e.g., mutual
legal assistance, extradition).
State Parties are entitled to use theConvention to supplement any
existing treaties among them orwhere there are no existingtreaties or other arrangements.

Requiring State Parties to enact,or take such other measures as arenecessary, to ensure that various
enforcement powers can be
exercised by law enforcement
authorities for the purpose of
criminal investigations orproceedings (i.e., orders for thepreservation of specific computer
data pending its acquisition bylegal measures, search and seizureof computer data, orders for the
production of computer data,collection of traffic data,interception of communications) in
relation to Convention offences,
any other criminal offence
committed by means of a computer
system and evidence in electronic
form of any criminal offence.

The cybercrime issue can become overly
focused on how Internet communications
occur. The environment changes fasterthan the law. This means that it is difficult
to stay in front of the communications.
Essentially this becomes an interception
issue.

Requiring State Parties to adopt
legislative and other measures toestablish jurisdiction over theConvention offences when theoffence is committed: in its
territory; on board a ship or airline
registered under the law of that
Party; or by one of its nationals if
the conduct is a criminal offence
where it was committed or if theoffence is committed outside theterritorial jurisdiction of any State.

V. INTERCEPTION ISSUES
The interception of private
communications, as an investigativetechnique, varies around the world. Somecountries do not have any specific laws
controlling this technique. Others have a
law that permits investigators to use
wiretaps provided they do so forintelligence purposes.22 Canada, and othercountries, legislated specific laws and use
wiretaps to gather evidence that is used inprosecutions.23 The Canadian interception
law was found to be an acceptableprocedure under Canada’s Charter ofRights and Freedoms. From the Canadianperspective, the parties involved in atargeted communication have a reasonable
expectation of privacy and a judicial
authorization is required before theinterception occurs if the State intends touse the interception as evidence.
22 The United Kingdom’s Regulation of Investigatory

Powers Act.
23 In Canada Part VI of the Criminal Code, for

(4.)

310

Requiring State Parties to provide,to the widest extent possible, eachother co-operation in thecriminal evidence purposes and the Canadian
Security Intelligence Services Act, for national
security purposes.

117TH INTERNATIONAL SEMINAR
VISITING EXPERTS’ PAPERS
Considering the person’s expectation ofprivacy, there is minimal difference
between phone communications andcommunications involving the Internet.
Part VI authorizations are obtained by thepolice to intercept e-mail and other Internet
communications while they are in transit.
In the United States Title III was
influenced by Berger v. New York24 and Katz
v. U.S. 25 Canadian wiretap law should
apply the same analysis. They are asconcerned with the need to control thethreat posed to individual privacy byindiscriminate police use of wiretapping.
The American and Canadian wiretap
legislation were drafted very broadly inorder to regulate and control thet e c h n o l o g i c a l i n v a s i v e o f p r i v a c y.
Legislative amendments have also been
made to keep pace with new police
investigative techniques and technologythat were not contemplated by the initialenactments. In Canada warrants inrelation to videotaping, digital number
recorders, tracking devices and cell phones
were added to the Criminal Code.
The United States Supreme Court has
described and outlined the history of theformation of the Internet:26[para25] The Internet is aninternational network ofinterconnected computers. It is theoutgrowth of what began in 1969 as amilitary programme called“ARPANET,” which was designed toenable computers operated by the
military, defense contractors, and

24 Berger v.

New York 388 U.S. 41 (1967)
U.S. 389 U.S. 347 (1967)
26 Reno, Attorney General O v. American Civil
Liberties Union (06/26/1997), From Wiretappingand Other Electronic Surveillance, By Hubbard,
Brauti and Fenton, Canada law Book
25 Katz v.

universities conducting defenserelated research to communicate with
one another by redundant channels
even if some portions of the network
were damaged in a war. While the
ARPANET no longer exists, it
provided an example for thedevelopment of a number of civilian
networks that, eventually linking
with each other, now enable tens of
millions of people to communicate
with one another and to access vast
amounts of information from aroundthe world. The Internet is “a uniqueand wholly new medium of world-wide
human communication.”[para26] The Internet has experienced“extraordinary growth.” The numberof “host” computers - those that store
information and relay
communications-increased from about
300 in 1981 to approximately
9,400,000 by the time of the trial in
1996. Roughly 60% of these hosts arelocated in the United States. About
40 million people used the Internet atthe time of trial, a number that is
expected to mushroom to 200 million
by 1999.
The Reno court opined on the extra
territorial nature of the Internet as a
medium of communications:[para28] Anyone with access to theInternet may take advantage of a wide
variety of communication andinformation retrieval methods. Thesemethods are constantly evolving anddifficult to categorize precisely. But,
as presently constituted, those most
relevant to this case are electronic
mail (“e-mail”), automatic mailing list
services (“mail exploders,” sometimes
referred to as “listservs”),“newsgroups,” “chat rooms,” and the“World Wide Web.” All of these311

RESOURCE MATERIAL SERIES No. 58
methods can be used to transmit text;
most can transmit sound, pictures,and moving video images. Taken
together, these tools constitute a
unique medium-known to its users as“cyberspace” - located in no particulargeographical location but available toanyone, anywhere in the world, withaccess to the Internet. (Emphasis
added)[para29] E-mail enables an individual
to send an electronic messagegenerally akin to a note or letter toanother individual or to a group ofaddressees. The message is generally
stored electronically, sometimes
waiting for the recipient to check her“mailbox” and sometimes making its
receipt known through some type of
prompt. A mail exploder is a sort of email group. Subscribers can send
messages to a common e-mail address,
which then forwards the message tothe group’s other subscribers.
Newsgroups also serve groups ofregular participants, but these
postings may be read by others as
well. There are thousands of suchgroups, each serving to foster an
exchange of information or opinion ona particular topic running the gamut
from, say, the music of Wagner toBalkan politics to AIDS prevention to
the Chicago Bulls. About 100,000 new
messages are posted every day. In
most newsgroups, postings areautomatically purged at regularintervals. In addition to posting amessage that can be read later, two
or more individuals wishing tocommunicate more immediately canenter a chat room to engage in realtime dialogue-in other words, by
typing messages to one another thatappear almost immediately on theothers’ computer screens. ... It is “noexaggeration to conclude that the312

content on the Internet is as diverse
as human thought.”[para30] The best known category ofcommunication over the Internet is
the World Wide Web, which allows
users to search for and retrieve
information stored in remotecomputers, as well as, in some cases,
to communicate back to designatedsites. In concrete terms, the Web
consists of a vast number of
documents stored in different
computers all over the world. Someof these documents are simply files
containing information. However,more elaborate documents, commonly
known as Web “pages,” are alsoprevalent. Each has its own address“rather like a telephone number.”[para31] Navigating the Web isrelatively straightforward. A user
may either type the address of aknown page or enter one or more
keywords into a commercial “searchengine” in an effort to locate sites ona subject of interest. A particular Web
page may contain the information
sought by the “surfer,” or, through its
links, it may be an avenue to otherdocuments located anywhere on theInternet. Users generally explore agiven Web page, or move to another,by clicking a computer “mouse” on oneof the page’s icons or links. Access tomost Web pages is freely available,
but some allow access only to those
who have purchased the right from acommercial provider. The Web is thus
comparable, from the readers’viewpoint, to both a vast library
including millions of readily available
and indexed publications and a
sprawling mall offering goods andservices.

117TH INTERNATIONAL SEMINAR
VISITING EXPERTS’ PAPERS
The United States’ Electronic
Communications Privacy Act (ECPA) of
1986 attempted to update the wiretap
statute by prohibiting the unlawful access,use and disclosure of electronic
communications. The intent wasinterpreted to exclude stored electronic
message, once the intended recipient
opened the messages. 27 Other cases
adopted a more restrictive interpretationof the law.28
VI. CANADA’S APPROACH
The Criminal Code’s search provisions
were amended to provide for a search
warrant to be used to search computers.
The regular warrant provision containedin s.487 of the Code was amended to afford

broad latitude to the police to conduct
searches of computers without complying
with Part VI. Section 487 specifically deals
with computer searches as follows:(2.1) A person authorized under thissection to search a computer system ina building or place for data may(a) use or cause to be used any computer
system at the building or place tosearch any data contained in oravailable to the computer system;(b) reproduce or cause to be reproduced
any data in the form of a print-out orother intelligible output;(c) seize the print-out or other output for
examination or copying; and(d) use or cause to be used any copying
equipment at the place to makecopies of the data.

27 Steve Jackson Games, Inc. v. United States Secret

Service, 36 F.3d 457 (5th Cir., 1994)
28 United States v. Smith, 155 F.3d 1051, 98 Cal. (9thCir., 1998) In Canada, R. v. McQueen (1975), 25
C.C.C. (2d) 262 at 265 (Alta. C.A.) the court
interpreted the word intercept contained in s.183.
The court stated:
In interpreting new legislation, a good starting
place is to consider the dictionary definition ofwords used. The Shorter Oxford English Dictionary,
3rd ed., defines:
Intercept 1. trans. To seize, catch, or carry off on
the way from one place to another; to cut off fromthe destination aimed at -- 1548. b. To stop thenatural course of (light, heat, etc.); to cut off(light) from anything 1945. c. To interrupt -- 1759.
d. To check, cut off (passage or motion) from one
place to another 1596. 2. To prevent, check, stop,hinder 1576. 3. To mark off or include (a certain
space) between two points or lines; hence, tocontain, enclose. 4. To cut off (one thing) fromanother, or (ellipt.) from sight, access, etc. 1662.
In, at least, its primary sense the word intercept
suggests that there must be an interference
between the place of origination and the place ofdestination of the communication. If Parliament
intended the word intercept to be used in thisprimary sense, then there was no interception here.

(2.2) Every person who is in possession
or control of any building or place inrespect of which a search is carried out
under this section shall, on presentationof the warrant, permit the person
carrying out the search(a) to use or cause to be used any
computer system at the building orplace in order to search any datacontained in or available to thecomputer system for data that theperson is authorized by this section
to search for;(b) to obtain a hard copy of the data andto seize it; and(c) to use or cause to be used any copying
equipment at the place to makecopies of the data.
It seems self evident that a search
warrant, rather that a Part VI
authorization, is the appropriate order tosearch a computer. The problem is that aninterception or a search, which ever theorder required in the circumstances,
depends upon laws that are limited to theterritory of the state.

313

RESOURCE MATERIAL SERIES No. 58
A Canadian search warrant orauthorization has no effect outside Canada.
Conversely a foreign search warrant orintercept authorization is ineffective in
Canada. Mutual legal assistanceprovisions are available to assist anotherstate. Canada has enacted the Mutual
Assistance in Criminal Matters Act to use
in various requests under relevant Treaties
and Conventions. S. 10 of the Act permits
a foreign country to request Canadianauthorities to obtain a search authorizationon their behalf in Canada. The section
provides:10. The Criminal Code, other thansection 487.1 (telewarrants) thereof,
applies, with such modifications as
the circumstances require, in respectof a search or a seizure pursuant tothis Act, except where that Act isinconsistent with this Act.
Part VI of the Criminal Code specificallylimits authorizations to specifically listed
offences. A foreign MLAT request seeks
evidence that assists a foreign offence.
Therefore a wiretap authorization is notavailable under the mutual assistance law.
It is inconsistent with the Mutual Legal
Assistance Act. The Council of Europe’s
draft Cybercrime Convention illustrates
the problem when digital traffic moves
across jurisdictions.
It is clear that nations must co-operate
if they are every able to respond to Internet
crimes. Additionally, the interception ofprivate communications is hamstrung due
to shifting technology. Interceptions now
occur at the carrier’s switch. As global
communications and world trade
agreements develop, switches are notalways located in the country where atargeted private communication occurs. If
the place of interception is a switch thelocale of the switch may require that the
local interception law must be used to314

authorize the interception. This raises aninteresting question if the offence underinvestigation prevents the issuance of an
authorization. Again, this illustrates thatnations must co-operate to address crimein the digital age.
VII. CONCLUSION
Individuals around the world perceivethat the digital age minimises privacy tothe altar of technological convenience. In
Canada, this has led to enhanced privacy
obligations for businesses. These
provisions have unexpected impact on thepolice and the business community. The
Internet is the latest tool for investigatorsand criminals.
The ability to investigate thiscommunication medium is something thatwill challenge law enforcement for theforeseeable future. Equally significant, theterritorially limitations of domestic wiretap
laws significantly limits law enforcement.
Nations will have to respond to these issues
or admit that the 21st century creates anunregulated communication environment.