OTTAWA—The Supreme Court of Canada broke new legal ground for privacy rights in a ruling that says the constitution
protects the anonymity Canadian Internet users expect when they go online.
The high court in a bombshell 8-0 decision ruled Friday police must obtain search warrants to obtain basic subscriber information such as a customer’s name, address and phone number from telecom companies when an officer suspects illegal activity.
The decision immediately put in doubt the fate of two Conservative government bills that expand warrantless access to such data.
But it was hailed by privacy rights experts across the country, with federal Privacy Commissioner Daniel Therrien calling it “a seminal decision for privacy protection in Canada.”
Therrien said it “recognized that anonymity on the Internet is a critical component of informational privacy.”
In the past, privacy was seen through a territorial lens — a man’s home was his castle. And in the modern information age, the debate over how private Canadians’ personal information should be was interpreted in the context of who controlled it or had access to it, or how much confidentiality or secrecy attached to which kinds of information, such as medical or tax records, the content of phone calls or electronic communications.
With this decision, the high court said Canadians have a “reasonable expectation” that what they do and where they go online is done anonymously and, depending on their activities, that anonymity should not be stripped from them without a judicial warrant.
Warrantless demands by police of telecom companies amount to a search and are unconstitutional, the high court said.
It’s a stunning declaration given revelations this year that telecoms companies received nearly 1.2 million requests from law enforcement in 2011 alone.
Big telecom companies like Shaw and Rogers said only they were reviewing the decision.
The ruling deals with a Saskatchewan man who was charged with possessing and distributing child pornography after police used his Internet address to get further details from his online service provider, all without first obtaining a search warrant.
Lawyers for the man argued that violated his constitutional right to be protected from unlawful search and seizure.
However, in the case of Matthew David Spencer, who brought the appeal, the judges said the evidence obtained by police may be used to uphold a conviction on possession of child pornography, and entered in a new trial on distribution charges that the man had been acquitted of.
The Supreme Court of Canada said given the seriousness of the offences and the fact that police were acting in good faith at a time when the law was uncertain, the evidence gathered in the search should be admitted against Spencer, and that to exclude it would bring the administration of justice into disrepute.
The ruling immediately reverberated in Parliament in the debate over Bill C-13, the cyber-bullying bill that amends the Criminal Code, the evidence act and the international mutual legal assistance act; and Bill S-4, the Digital Privacy Act, that would broaden access to subscriber data for investigations of breaches of contracts and other laws.
The NDP and Liberals demanded the Conservative government amend both to better protect personal information.
“When will they finally take a balanced approach that keeps Canadians secure without infringing on constitutional rights?” demanded New Democrat MP Peter Julian.
Neither Prime Minister Stephen Harper nor Justice Minister Peter MacKay were present in the Commons.
MacKay’s parliamentary secretary, Bob Dechert, said the government is reviewing the ruling and “respects” the court’s work but will “continue to crack down on cyberbullies and online criminals who work against and make our children and all Canadians unsafe.”
Therrien, however, said the government must re-think both bills in light of the Supreme Court’s determination that subscriber information “could, in many cases, be the key to unlocking sensitive details about a user’s online activities and is therefore worthy of constitutional protection.”
Simply including an “immunity clause” to protect telecoms who voluntarily disclose personal information “does not constitute any ‘lawful authority’ for the state to obtain that information under Canada’s federal private sector privacy legislation, the Personal Information Protection and Electronic Documents Act (PIPEDA),” Therrien said in a statement.“This is a huge step forward for Canadians in terms of privacy and electronic media,” said lawyer Jill Presser, on behalf of the intervenor, the Criminal Lawyers Association of Ontario, who traced the evolution of how courts have viewed privacy.
She said Internet users’ expectation of privacy will still depend on factual context and circumstance, for instance “nobody has a reasonable expectation that their posts on Facebook are private. If they do they’re delusional.”
It was not immediately clear what impact it might have on police work, however criminal lawyers pointed to the availability of telewarrants, as well as police powers to act without warrant in urgent cases.
Presser said the ruling does not affect the powers of police to obtain warrantless access to data in emergencies, for example, if officers feared a child or any other person was at any immediate risk of harm.
While the court said there is no obligation for telecoms to turn over subscriber data, the ruling does allow telecoms that become aware of criminal activity to voluntarily turn over data to the police; they just cannot be compelled to do so without a warrant.
University of Ottawa law professor Michael Geist, who holds the Canada Research Chair in Internet and E-commerce Law, posted an analysis online saying the ruling should have an immediate impact on police and “the practice of obtaining information on a voluntary basis should come to an end.”
He said the Conservative government should suspend its plans in Bills C-13 and Bill S-4 which would expand voluntary, warrantless disclosure now that the provisions appear to be unconstitutional.
Geist added Internet providers “need radical reform of their current approach to disclosure of subscriber information.” He pointed to the high court’s findings that Shaw’s policy provides “a confusing and unclear picture of what Shaw would do when faced with a police request for subscriber information.”
“The same can be said for virtually every ISP in Canada,” Geist wrote.
Two big Internet service providers said Friday they were reviewing the ruling.
Shaw, whose subscriber service policy was described as confusing by the high court, declined any further comment. Rogers spokesperson Jennifer Kitt emailed only a brief comment: “We’ll continue to safeguard our customers’ information and comply with the law.”
Aaron Fox, Spencer’s lawyer, said Friday: “In our view the SCC took a major step forward by recognizing the significant privacy rights in this case but then took a big step backwards by failing to grant a remedy for the Charter breach they found.”
The overall principle in Friday’s ruling is clear: Internet users have a reasonable expectation of privacy over information that can reveal the nature of their computer usage; and that privacy may only be intruded upon with a court order.
“The disclosure of this information will often amount to the identification of a user with intimate or sensitive activities being carried out online, usually on the understanding that these activities would be anonymous. A request by a police officer that an ISP (internet service provider) voluntarily disclose such information amounts to a search,” wrote Justice Thomas Cromwell.
Cromwell said the police request that the ISP disclose the subscriber information was “in effect a request to link Mr. Spencer with precise online activity that had been the subject of monitoring by the police and thus engaged a more significant privacy interest than a simple question posed by the police in the course of an investigation.”
The court said the request by police of Shaw to turn over the identifying information — name, address, telephone number — that ultimately led them to Spencer violatedsection 8 of the Charter of Rights and Freedoms which says all Canadians have a right to be free of unreasonable search and seizure.
Cromwell said police do not have the power to conduct a search for subscriber information “in the absence of exigent circumstances or a reasonable law.” And they did not gain a new search power under the Protection of Personal Information and Electronic Documents Act or PIPEDA which was “enacted to promote the protection of personal information.”
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