R. v. Bykovets, 2024 SCC 6
Facts
The appellant, Bykovets, was convicted of credit card fraud. During their investigation, law enforcement authorities obtained from Moneris, a third-party payment processing company, the IP addresses used for the appellant's transactions. This was done without prior judicial authorization.
The appellant alleged that the police's request to Moneris violated his right against unreasonable search and seizure under section 8 of the Canadian Charter of Rights and Freedoms, Part I of The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c. 11 (Canadian Charter). The issue before the Supreme Court was whether an individual had a reasonable expectation of privacy of their IP address.
Decision
The majority of the Supreme Court allowed the appeal and ordered a new trial, holding that an individual's IP address is protected under section 8 of the Canadian Charter. Law enforcement authorities are therefore required to obtain judicial authorization before obtaining an IP address from a third party.
The Court interpreted section 8 of the Canadian Charter in a broad and purposive manner. Defining a "reasonable expectation of privacy" is an exercise of balance. In this case, the balance weighs in favour of extending a reasonable expectation of privacy to IP addresses. The highly private nature of the information an IP address may divulge, strongly suggests that the public's interest should prevail over the government's interest in advancing its goals in law enforcement.
The Internet has exponentially increased both the quality and quantity of information stored about Internet users. It has allowed private corporations to track users, and to build profiles containing information the users do not know they are revealing. By concentrating this mass of information with private third parties, the Internet has altered the topography of privacy under the Canadian Charter. It has added a third party to the constitutional ecosystem, making the horizontal relationship between the individual and the state tripartite.
While the third parties are not subject to section 8 of the Canadian Charter, they mediate a relationship which is directly governed by it — that between defendant and police. Judicial oversight is therefore appropriate to remove from private corporations the decision of whether to reveal information and, if so, how much to reveal.
The dissenting judges would have denied the appeal since they concluded that the appellant did not have a reasonable expectation of privacy of his IP addresses. Accordingly, the police would not have needed judicial authorization.
Key Takeaway
A reasonable expectation of privacy includes protections to an individual's IP address, and is therefore protected under section 8 of the Canadian Charter. Prior judicial authorization is therefore required to obtain an IP address from a third party.
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