Supreme Court Of Canada Releases Landmark Privacy Decision

On June 13, 2014, the Supreme Court of Canada (Supreme Court), in R v Spencer 2014 SCC 43, ruled that individuals have a reasonable expectation of privacy in their subscriber information associated with their Internet Protocol (IP) address, and that voluntary disclosure of that information from an Internet Service Provider (ISP) may constitute an illegal search. Spencer, the accused, downloaded child pornography through an Internet file-sharing program which made the material available to others. As part of their investigation, police were able to identify the IP address that was used to obtain and store the pornographic material. The police contacted the ISP of the IP address to obtain the name, address and telephone number that was associated with the IP address. The request was made pursuant to section 7(3)(c.1)(ii) of the Personal Information Protection and Electronic Documents Act (PIPEDA), which provides that an organization may disclose personal information without consent to a government institution, if the government institution which requested the information identified its lawful authority to obtain the information and indicated that the disclosure is requested for the purpose of enforcing any law, carrying out an investigation or gathering intelligence to enforce a law. Once the police had the name, address and telephone number associated with the IP address, the police obtained a warrant to search Spencer’s home and seized his computer. At trial, Mr. Spencer attempted to exclude the evidence obtained by the police on the basis that the police obtained his personal information through an unreasonable search contrary to section 8 of the Canadian Charter Rights and Freedoms. The trial judge rejected Spencer’s argument, convicted him of possession of child pornography and acquitted him on the charge of making the child pornography available. The Saskatchewan Court of Appeal upheld the conviction, set aside the acquittal and ordered a new trial. In a unanimous decision, the Supreme Court held that the accused had a reasonable expectation of privacy in his subscriber information. The Supreme Court also held that PIPEDA could not be relied upon as the police request had no “lawful authority”. However, even though the Supreme Court found the police conduct to be unconstitutional, in the case before it, it elected not to exclude the evidence, as to do so would bring the administration of justice into disrepute. As a result, the Supreme Court affirmed Spencer’s conviction and upheld the Court of Appeal’s order for a new trial on the charge of making available child pornographic material. The Supreme Court’s decision has numerous implications in the privacy realm. Police will no longer be able to request subscriber information from ISPs without a warrant. In addition, the Supreme Court’s decision raises questions about the legality of certain provisions in two recent bills that have been proposed by the Government of Canada. Bill C-13 (Cyberbullying Bill) and Bill S-14 (PIPEDA reform bill) each include provisions that would allow organizations to voluntary disclose personal information without a warrant. Canada’s Privacy Commissioner has issued a statement recommending that both bills should be reviewed in light of Spencer. For an article discussing the Privacy Commissioner’s comments, follow this link. For commentary on how the Supreme Court’s findings contrast with Bills C-13 and S-14, follow this link. Summary by: Adam Lis