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MLJ Volume 36-1.pdf - Robson Hall Faculty of Law

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232 MANITOBA LAW JOURNAL|VOLUME <strong>36</strong> ISSUE 1<br />

such as Facebook and MySpace, have internal departments dedicated to<br />

handling law enforcement requests and have handbooks available to law<br />

enforcement with sample forms and dedicated contact lines. Social<br />

networks and internet companies are obliged under American law to<br />

release pr<strong>of</strong>ile information directly to law enforcement once a court order<br />

is obtained. With proper authorization, social networks in the US may be<br />

compelled to provide law enforcement with subscriber information or<br />

with the contents <strong>of</strong> a user’s account. They may also be mandated to<br />

preserve or back up a users’ account when presented with a subpoena or<br />

search warrant. Unlike the US, Canada does not require that website<br />

operators located in Canada preserve material (when requested) before<br />

issuing a search warrant. 42 As most social networks are located in the US,<br />

law enforcement may send a request to a social network to hold<br />

information while they request a search warrant.<br />

B. Production Orders<br />

<strong>Law</strong> enforcement is not granted unlimited access to a subscriber’s<br />

account. They are prevented from receiving content information without a<br />

valid search order under the US’ SCA and then only if:<br />

the governmental entity <strong>of</strong>fers specific and articulable facts showing that there<br />

are reasonable grounds to believe that the contents <strong>of</strong> a wire or electronic<br />

communication, or the records or other information sought, are relevant and<br />

material to an ongoing criminal investigation. 43<br />

Social networks will recognize a foreign subpoena, discussed below, for<br />

basic subscriber information, but require foreign <strong>of</strong>ficials to directly seek<br />

an American issued search warrant.<br />

Access to subscriber records in the US, including the name <strong>of</strong> the<br />

account owner, the account owner’s email address, date <strong>of</strong> creation, and<br />

the IP address used to access the account, requires a court order or an<br />

administrative subpoena under section 2703 <strong>of</strong> the SCA. A production<br />

order issued in Canada under section 487.012 <strong>of</strong> the Criminal Code 44<br />

42<br />

The Department <strong>of</strong> Justice has circulated a discussion paper that considers whether<br />

preservation orders should be introduced into the Canadian criminal code. Online:<br />

.<br />

43<br />

SCA, supra note 8 at § 2703 (d).<br />

44<br />

Criminal Code, RS C 1985, c C-46, s 487.012 [Criminal Code].

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