The Ontario Court of Appeal released a decision today addressing the reasonable expectation of privacy in Internet Service Provider (ISP) subscriber data.

The case involved a law enforcement request for subscriber data and the discretionary exceptions for disclosures without consent under the Personal Information Protection and Electronic Documents Act (PIPEDA). In finding no reasonable expectation of privacy in the circumstances of this case, the Court of Appeal stated that:

"... the 'reasonable and informed person' ... would view a customer's reasonable expectation of privacy in his or her subscriber information to be circumscribed by the service provider's discretion to disclose that information to the police where it was both reasonable to do so and a PIPEDA compliant request for disclosure had been made by the police."

The Court limited the impact of the decision, noting the conclusion is:

"... not intended to suggest that disclosure of customer information by an ISP can never infringe the customer's reasonable expectation of privacy. If, for example, the ISP disclosed more detailed information, or made the disclosure in relation to an investigation of an offence in which the service was not directly implicated, the reasonable expectation of privacy analysis might yield a different result. Similarly, if there was evidence that the police, armed with the subscriber's name and address, could actually form a detailed picture of the subscriber's Internet usage, a court might well find that the subscriber had a reasonable expectation of privacy."

For a full copy of the decision, see R. v. Ward, 2012 ONCA 660. A summary of the decision will be available to AccessPrivacy Private Sector Source subscribers shortly.