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The Canadian cases dealing with the constitutionality of police access to customer name and address information held by telecommunications service providers (TSPs) are notable in that they deal with voluntary disclosure by TSPs at the request of law enforcement officers and because these requests have all been pursuant to investigations related to child pornography offences. Child exploitation is an exceptional context and we should be cautious in drawing broad legal conclusions from these cases, particularly in relation to the Canadian government’s “lawful access” initiatives which include proposals for mandatory sharing of subscriber information upon police request for any purpose. This article argues that the social and legal context to voluntary cooperation is key to understanding why companies make an exception to their usual practice of requiring warrants in the service of protecting vulnerable children. It also argues that voluntary cooperation must abide by the requirements of “reasonableness” set out in both the Personal Information Protection and Electronic Documents Act (PIPEDA) and Charter jurisprudence. Further, such cooperation must comport with both general privacy principles evaluating the sensitivity of information and the limits on police discretion required to abide by the rule of law.
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