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You Can Stay Anonymous: SCC Recognizes a Privacy Interest in Protecting Anonymity on the Internet




by:
Roland Hung
McCarthy Tétrault LLP - Calgary Office

Charles S. Morgan
McCarthy Tétrault LLP - Montreal Office

 
June 27, 2014

Previously published on June 22, 2014

On June 13, 2014, in a landmark privacy ruling, the Supreme Court of Canada (“SCC”) in R v Spencer[1] (“Spencer”) unanimously recognized that, in addition to confidentiality and control of the use of personal information, there may be a privacy interest in protecting anonymity in the context of internet usage. In this decision, the SCC decided that a person has a reasonable expectation of privacy associated with Internet activities and that the “lawful authority” exemption in PIPEDA does not create a basis to provide such information to the police unless the police actually demonstrate that they have the requisite lawful authority to require the disclosure, such as pursuant to a warrant or court order.

Facts

The Saskatoon Police Service Criminal Intelligence Section (the “SPS”) discovered files containing child pornography in a shared folder of a computer using a particular Internet Protocol (“IP”) address. The SPS found that the owner of the IP address through the Internet Service Provider (“ISP”) and, without obtaining prior judicial authorization, the SPS made a request to the ISP to obtain the ISP subscriber information of that individual under section 7(3)(c.1)(ii) of the Personal Information Protection and Electronic Documents Act (“PIPEDA”)[2], which permits organizations to disclose information without the knowledge or consent of the individual in question if the disclosure is requested by a government institution that identified its lawful authority to carry out investigation in the course of law enforcement. Accordingly, the ISP provided the SPS with the name, address, telephone number, account number, and billing particulars of the individual to whom the ISP had assigned the IP address. With this information, the SPS executed a search warrant, ultimately leading them to the home of Mr. Spencer, the accused. The SPS subsequently found a significant quantity of child pornography in a shared folder on Mr. Spencer’s computer. The accused was charged and convicted of possession of child pornography contrary to section 163.1(4) of the Criminal Code (the “Code”),[3] and of making child pornography available over the Internet contrary to section 163.1(3) of the Code.

Both the Saskatchewan Court of Queen’s Bench (“SKCQB”) and the Saskatchewan Court of Appeal (“SKCA”) found that the accused was guilty of possession. At trial, Mr. Spencer sought to exclude the evidence found on his computer on the basis that the police breached his section 8 rights under the Canadian Charter of Rights and Freedoms (the “Charter”)[4] by obtaining the subscriber information matching the IP address from the ISP without a search warrant.

Issue

The Court had to determine whether the written request by the SPS constituted a search that would engage the constitutional protection provided under section 8 of the Charter. One of the underlining questions that the court had to answer was whether, in the totality of circumstances, Mr. Spencer had a reasonable expectation of privacy in the subscriber information provided to the SPS by the ISP.

To address this question, there were four issues raised before the Court, namely:

  1. Did the police obtaining the subscriber information matching the IP address from the ISP constitute a search?
  2. If so, was the search authorized by law?
  3. If not, should the evidence obtained as a result be excluded?
  4. Did the trial judge err with respect to the fault element of the “making available” offence?

Decision

In assessing the reasonableness of Mr. Spencer’s expectation of privacy, the Court considered 1) the subject matter of the search, 2) the nature of the privacy interest at stake, and 3) the statutory and contractual framework governing the ISP’s disclosure of subscriber information.

Justice Cromwell, writing for the Court, found that the totality of circumstances of the case confirmed that there was a reasonable expectation of privacy in the information provided by the ISP. Neither the Code nor PIPEDA created any police search and seizure powers in these circumstances. Therefore, the customer information obtained by the SPS, which led to the issuance of the warrant, was acquired in violation of Mr. Spencer’s constitutional rights. Nevertheless, relying on the test set out in R v Grant[5], the Court found that excluding the evidence would tend to bring the administration of justice into disrepute and upheld the admission of the evidence and incidentally the conviction.

Subject matter of the alleged search

Pursuant to section 8 of the Charter, the subject matter of a search must be properly classified to identify the privacy interest affected. Contrary to the lower courts’ decisions, the SCC held that the subject matter of the search in this case was not merely generic information, but rather the identity of the Internet subscriber corresponding with the particular Internet usage that had the potential to reveal intimate lifestyle details and personal individual choices.

Nature of the privacy interest

Although the concept of informational privacy is often equated with the notion of confidentiality or the notion of control over, access to, and use of information, the Court held that the concept of informational privacy potentially protected by the Charter must include an understanding of privacy as anonymity. The Court found that the police request to the ISP for customer information which is associated with purposely observed and specific anonymous Internet activity engaged the anonymity aspect of informational privacy interest.

Governing statutory and contractual framework

Both the SKCQB and SKCA found that there could be no reasonable expectation of privacy in light of the relevant contractual and statutory provisions which allowed disclosure without consent to a government institution that has identified its “lawful authority”. Significantly, the Court interpreted PIPEDA section 7(3)(c.1)(ii), noting that in this instance, the police request for the subscriber information did not have a warrant or court order or otherwise identified their lawful authority. Since the statutory and contractual framework narrowly circumscribed the ISP’s right to disclose the personal information, the Court concluded that the contractual provisions of the ISP’s privacy agreement supported the existence of a reasonable expectation of privacy on the part of Mr. Spencer. Justice Cromwell found that disclosure could only be made where required or permitted by law. As such, in this case, the SPS would have needed to have lawful authority to request the disclosure (i.e. by obtaining a search warrant).

Significance

Spencer has both reinforced and expanded the recent case law on the importance of an individual’s privacy in a digital age. Specifically, Spencer is in line with the 2013 SCC decision in R v Vu[6] (“Vu”) wherein the SCC held that a separate search warrant is required to search a computer even where a search warrant has been obtained for the premises in which the computer is located. In fact, Spencer broadened Vu, as it protects the identity of Internet users regardless of the location of the information source. The Court in Spencer noted that the location where the activity occurs is secondary to the nature of the activity itself since internet users do not expect online anonymity to cease when they access the internet from outside of their homes.

Spencer seems to suggest that organizations may not disclose personal information to a government institution, such as the SPS, absent “lawful authority” from a court order or warrant. The risk of disclosing personal information to a government institution that did not identify its “lawful authority” through a proper court order or warrant may result in a civil claim for damages for invasion of privacy in light of Jones v. Tsige, or a privacy compliant. One way for organizations to mitigate this risk is by indicating in their privacy policies, terms of use, or privacy agreements that personal information may be divulged to government institution that have identified their “lawful authorities” without consent.

Further, as alluded to above, while this decision is rendered with respect to PIPEDA, it will likely have great impact on the interpretation of similar disclosure sections in other substantively similar privacy statutes.

Of more immediate consequence, Spencer will have the following affect:

a) Common police practices will now have to be changed in light of this decision as police will now have to get a court order or warrant (or otherwise demonstrate their “lawful authority”) when requesting subscribers and other personal information from ISPs.

b) Contrary to what has been long asserted by law enforcement, an IP address is not analogous to a mere telephone number.

c) The decision suggests that the right to privacy includes the right to anonymity.

d) It clarifies the meaning of “lawful authority” under PIPEDA and perhaps other substantively similar privacy statutes.

The decision will no doubt be read carefully by federal legislators in the context of their ongoing effort to adapt “lawful access” legislation pursuant to Bill C-13.


[1] R v Spencer, 2014 SCC 34. 

[2] Personal Information Protection and Electronic Documents Act, SC 2000, c 5.

[3] Criminal Code, RSC 1985, c C-46.

[4] The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982 c 11.

[5] R v Grant, 2009 SCC 32.

[6] R v Vu, 2013 SCC 60, [2013] 3 SCR 657.



 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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