The Supreme Court puts it mildly in its opening line: "The
Internet raises a host of new and challenging questions about
One of those questions is whether an IP address can be
considered personal information. An internet protocol (IP) address
is the unique numeric identifier of a particular computer and, in a
wider sense, can be any node or point in the internet generally. In
the recent case of R. v. Spencer, 2014
SCC 43, the Supreme Court of Canada (SCC) considered whether there
is a reasonable expectation of privacy in ISP subscriber
information including IP address information.
In this case, police identified the IP address of a computer
that someone had been using to access child pornography.
Police approached the ISP and obtained the subscriber information
associated with that IP address. At this point, no warrant was
issued. This led them to the accused and a warrant was
issued for a search of his residence. The accused was charged and
convicted. The SCC indicated that in this case, there was
a reasonable expectation of privacy in the subscriber information,
including the IP address.
Since the search of the subscriber info was obtained without a
warrant, the search violated the Charter. While a
warrant was eventually issued for a search of the accused's
residence, that warrant could not have been obtained without the
original (warrantless, unconstitutional) search of the ISP
subscriber information. Since the original search was
unconstitutional, it follows that the search of the
residence was also unconstitutional. This all leads to the
exclusion of the evidence found at the residence.
Nevertheless, the SCC said that, even in light of all of the
above points, the "police conduct in this case would not tend
to bring the administration of justice into disrepute."
The court concluded, in essence, that excluding the
evidence would be worse than allowing that unconstitutional search.
The admission of the evidence was therefore upheld.
A few key points to note:
taken into account by the court in these cases.
that "Shaw may disclose Customer's Personal Information
to: . . . a third party or parties, where the Customer has given
Shaw Consent to such disclosure or if disclosure is required by
law..." The initial warrantless search by the
police was not "required by law" (in the sense that it
was merely a request and police had no way to legally compel
compliance). This contributed to the court's conclusion that
there was a reasonable expectation of privacy on the part
of the accused.
This contrasts with the decision by the Ontario Court of Appeal
in R. v. Ward2012 ONCA 660, where the court held that the
provisions of PIPEDA were a factor which weighed
against finding a reasonable expectation of privacy in
subscriber information. That was another child pornography case. In
that case, the ISP was Bell, whose terms said "[Bell Sympatico
will] offer full co-operation with law enforcement agencies in
connection with any investigation arising from a breach of
this [Acceptable Use Policy]." There was no reference
to disclosures "required" by law. In that
case, the accused has a subjective expectation of privacy,
but that expectation was not objectively reasonable in
light of his criminal activities.
Consider reviewing your privacy policies and your
organization's ability to disclose subscriber
information in light of these decisions.
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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