The Supreme Court puts it mildly in its opening line: “The Internet raises a host of new and challenging questions about privacy.”
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:
- 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.