The Supreme Court of Canada decided late last week in R v Spencer1 that when police demand basic subscriber information held by telecom service providers and ISPs be provided without a warrant, such activity constitutes a search and police cannot rely upon their general investigative powers under s. 487.014 of the Criminal Code or the lawful authority exception provided in s. 7(3)(c.1)(ii) of the Personal Information Protection and Electronic Documents Act as authorizing such disclosure.

Writing for the court, Justice Cromwell stated that, “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. A request by a police officer that an ISP voluntarily disclose such information amounts to a search.” As a result, police will now require a warrant to obtain subscriber information (except in exigent circumstances) and the practice of telecom providers and ISPs voluntarily providing this information will come to an end.

Background

Mr. Spencer downloaded child pornography through an Internet file-sharing service. He was living with his sister at the time and using Internet services supplied under her name. In 2007, police identified a public sharing folder containing pornographic material and contacted Shaw, the ISP, to trace the folder’s IP address to a name and physical location.

Until this point, all of the information gathered by the police was publicly available; however, the police needed Shaw’s cooperation in order to locate the computer and identify Mr. Spencer. Shaw provided Mr. Spencer’s sister’s personal information to the police, which they then used to obtain a search warrant. Mr. Spencer was subsequently identified, charged, and convicted of possessing child pornography.

Unreasonable search and seizure

Mr. Spencer appealed his conviction on the grounds that acquisition by the police of the subscriber information and the resulting search of his computer constituted an unreasonable search and seizure, contrary to his s. 8 Charter rights. The Court of Appeal of Saskatchewan dismissed the appeal, finding that the police’s actions in obtaining the subscriber information did not constitute a search under the circumstances.

On further appeal to the Supreme Court of Canada, the court overturned the lower court’s determination as to whether an unlawful search had occurred. It was decided that Mr. Spencer did indeed have a reasonable expectation of privacy over his Internet activities in his own home and the police had no lawful authority to obtain the subscriber information. As a result, the police’s actions amounted to an unconstitutional search.

In making this determination, the Supreme Court held that, “Anonymity may, depending on the totality of the circumstances, be the foundation of a privacy interest.” However, the court noted that such an interest falls short of being a “right" that might otherwise preclude disclosure under lawful process.

Notwithstanding the court's determination that an unlawful search had occurred, the Supreme Court was not prepared to exclude the evidence obtained from the search warrant because to do so would bring the administration of justice into disrepute. As a result, Mr. Spencer’s conviction on possession was affirmed and the Court of Appeal's order for a new trial on the charge of making available pornographic material was upheld.

Ramifications

The outcome of this case has significant implications for Internet privacy. In the digital age, an IP address can be a gateway to a trove of Internet usage information revealing intimate or sensitive activities being carried out online. The court affirmed that, “Privacy in relation to information includes at least three conceptually distinct although overlapping understandings of what privacy is. These are privacy as secrecy, privacy as control and privacy as anonymity.” It will be interesting to see how the Government of Canada reacts to this decision in light of the government's current plans for expanded voluntary, warrantless disclosure under both Bill C-13 and Bill S-4.

Kaitlin Shung