The Supreme Court of Canada has clarified Canadians' rights
to privacy on the Internet. On June 13, 2014, the Supreme Court
ruled that police cannot obtain the identity of an Internet user
from the user's Internet service provider (ISP) without a
warrant or court order. Recent reports suggest that police request
information from ISPs without warrants or court orders, hundreds of
thousands of times per year.
R. v. Spencer addressed this issue in an investigation,
prosecution and conviction involving child pornography. The police
obtained the IP address used by the accused by monitoring his
Internet file sharing activities. The police asked his ISP to
identify the subscriber associated with the IP address. With the
subscriber information, police identified the accused and seized
his computer. In seeking the subscriber information, the police
relied on Canada's federal private-sector privacy legislation,
known as PIPEDA. Police maintained that it permitted disclosure of
personal information for law enforcement purposes even without a
warrant or court order.
The accused argued that: (i) disclosure of his identity was an
unreasonable search under Section 8 of the Charter; (ii) he had a
reasonable expectation of privacy that his Internet activities
would be kept private and that his identity would not be associated
with those activities; (iii) his personal information was subject
to protection under PIPEDA; and (iv) his personal information was
not properly subject to disclosure under the lawful authority
exemption, in response to a warrantless request made by the police.
The Supreme Court agreed and, in an 8 to 0 ruling, decided that the
disclosure of his identity was an unreasonable search (but
permitted the admission of the resulting evidence).
This ruling has at least two implications for all organizations.
First, it reinforces the emphasis in recent jurisprudence on the
importance of protecting privacy interests. Second, absent a court
order or warrant, an organization generally may not disclose
personal information to the police.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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