Internet users' privacy upheld by Supreme Court

[Moonlight Graham]

A victory for constitutional privacy, surveillance, and law and order in Canada: link at CBC

Internet service providers can't give customer names, addresses and phone numbers to police without a search warrant, Canada's top court has ruled in a unanimous decision released this morning.

The decision upholds Canadians' right to privacy and anonymity in their online activities. It also means parts of the cyberbullying and digital privacy bills that are currently before the House of Commons may be unconstitutional.

more...

Friday's decision concerned the case of Matthew David Spencer, of Saskatchewan, who was charged in 2007 and convicted of possession of child pornography after a police officer saw illegal files being downloaded to his IP address — a series of numbers representing the internet identity of a device such as a computer.

The police officer went to Spencer's internet service provider (ISP), Shaw, and asked for the real identity of the customer attached to the IP address. The police officer did not have a search warrant, but was given subscriber information for Spencer's sister, allowing police to track him down.

Spencer appealed his conviction, arguing that the search was unconstitutional and his rights were violated.

The Saskatchewan Court of Appeal ruled there is no reasonable expectation of privacy for basic internet subscriber information, prompting Spencer to appeal to the Supreme Court of Canada.

The Supreme Court disagreed that there is no reasonable expectation of privacy for the data obtained by police.

"In my view, in the totality of the circumstances of this case, there is a reasonable expectation of privacy in the subscriber information," Supreme Court Justice Thomas Cromwell wrote.

"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."

He added, "A warrantless search, such as the one that occurred in this case, is presumptively unreasonable. The Crown bears the burden of rebutting this presumption."

The oft mentioning of "unreasonable of course refers to Section 8 of the Charter of Rights & Freedoms: "8. Everyone has the right to be secure against unreasonable search or seizure."

This doesn't bode well for Bill C-13 and Bill S-4 conservatives have introduced, given this unanimous decision. I'm quite frankly relieved the SCC was so on the ball on this decision, which is laid out in the the Charter and in mountains of legal precedents where search/seizure of private info requires a warrant. Interesting how the Harper gov has been defending such actions as constitutional when the top federal judges all disagree.

Edited June 13, 2014 by Moonlight Graham

[guyser]

Interesting how the Harper gov has been defending such actions as constitutional when the top federal judges all disagree.

It would appear Harper et al have no working knowledge of the Charter, never heard of it, never seen it...nada.

Thank you SCC.

[Hydraboss]

Maybe one of the lawyers on the board can help me out here...I agree with the decision about requiring a warrant (it takes about 30 minutes in an extreme situation to get one), but in this particular case, would the conviction not be upheld? While the search was warrantless, I don't believe it was illegal. Wrong and illegal are two different things in Canada to my understanding. I could see where the convicted may be able to file suit against Shaw for giving the information out (the same line I have to walk with private information in the job I have) without warrant but the police didn't commit the equivalent of an internet "wire tap". They asked for subscriber information and were given it.

Does this pose the basis for a successful appeal of the conviction? Just curious.

[On Guard for Thee]

Maybe one of the lawyers on the board can help me out here...I agree with the decision about requiring a warrant (it takes about 30 minutes in an extreme situation to get one), but in this particular case, would the conviction not be upheld? While the search was warrantless, I don't believe it was illegal. Wrong and illegal are two different things in Canada to my understanding. I could see where the convicted may be able to file suit against Shaw for giving the information out (the same line I have to walk with private information in the job I have) without warrant but the police didn't commit the equivalent of an internet "wire tap". They asked for subscriber information and were given it.

Does this pose the basis for a successful appeal of the conviction? Just curious.

I'm not a lawyer but the news reports say the SCC dismissed his appeal at the same time they concluded there is a need for warrants.

[Hydraboss]

It said police should have obtained a warrant before asking Shaw for the customer information. But it also said police acted reasonably and in good faith, so the administration of justice would be impaired if the evidence gathered by searching Spencer's home in this particular case were thrown out of court.

The top court decision means Spencer would be subjected to a new trial, on a charge of making child pornography available to others.

I missed this somehow. The evidence is in play, but buddy gets a new trial. Great........

[Big Guy]

I cannot find the reference but I think I recall that an individual thought she was being slandered by an anonymous poster. The Internet provider refused so the individual sued the provider AND "John Doe". The internet provider then quickly gave up the identity and was removed from the court case.

I believe that there is no such thing as a guarantee of privacy when you sign on with a provider. It is still at the discretion of the provider whether or not to give up the name. I think what this says is that if the provider says no to a request then law enforcement must obtain a warrant for cause.

[guyser]

I believe that there is no such thing as a guarantee of privacy when you sign on with a provider. It is still at the discretion of the provider whether or not to give up the name.

The court is saying the provider is to do nothing unless given a warrant .

I think what this says is that if the provider says no to a request then law enforcement must obtain a warrant for cause.

What is the same is if the provider comes across illegal stuff they can call in the cops and provide info w/out warrant.

[Big Guy]

The court is saying the provider is to do nothing unless given a warrant .

It appears that we interpret the ruling differently.

I see the ruling as the provider having the choice of providing the information if it wants to - but if it chooses not to , then the police need a warrant.

I do not see this as a ruling governing the parameters of a business. I understand that there a few - very few professional relationships which have a legitimate owner/client confidentiality relationship. The obvious ones are the legal, medical and the religious community. My understanding is that all other commercial relationships are not given that immunity to disclosure or direction.

I would appreciate being corrected if I am mistaken.

Edited June 14, 2014 by Big Guy

[Topaz]

On the news, it was reported that the Tories put in the Bill, that even if the police THINK they could have a online crime, they can go ahead and get the info without a warrant but get one later. The court said no way.

[GostHacked]

Supreme court is stepping up for Canadians. Good thing to see.

[cybercoma]

There might have been a time when getting slapped down by the Supreme Court repeatedly would have had a party leader stepping down in shame. Those were the days, when elected representatives showed accountability and would fall on their swords as a sign of good faith. Not this government. Not today.

[monty16]

And again Harper is slapped down. But be sure he won't stop until Canada is turned into the cesspool of hate and racism that is the mess south of our border.

[Moonlight Graham]

There might have been a time when getting slapped down by the Supreme Court repeatedly would have had a party leader stepping down in shame. Those were the days, when elected representatives showed accountability and would fall on their swords as a sign of good faith. Not this government. Not today.

Thank the stars that we have an institution like the Supreme Court to stop ridiculously unlawful bills from becoming law. They're really the only thing preventing the Harper gov, the police/RCMP, CSIS, CSEC etc. from getting their way. I'm very glad that the judges unanimously see constitutional issues of privacy this way in this case, even though Harper appointed 6 of the 9 current SCC Justices himself. That is, until he sticks Vic Toews on the SCC .

[eyeball]

Vic Toews on the SCC will be like Percy Wetmore on the Green Mile.

[GostHacked]

Good post MG.

You are right, the SCC is the only thing protecting us, because it's obvious that the government is not caring about our rights.

I will bring up this point again. It's not terrorists or whatever reason they state that will erode our rights. It will be our own government. Harper has tried several times to get something like this through. Each time fail. They WILL try again but use a different reason/tragedy.