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Top Canadian court: Cops need warrant to get names from ISPs

Decision could scupper nascent cyberbullying, privacy bills

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Canadian ISPs can no longer simply hand over customer information without a warrant after the country’s Supreme Court ruled that internet users were entitled to a "reasonable" expectation of privacy.

The decision means that internet service providers can no longer disclose the names, addresses and phone numbers of their customers to law enforcement voluntarily, and cops will instead be required to get a warrant for the data.

The ruling stems from the case of Matthew David Spencer, who appealed his conviction for possession of child pornography after police officers tracked him down through an IP address. The cops knew the IP address associated with the illegal files and went to Spencer’s ISP to ask it for the associated name and address. Once they got his details, they were able to search his computer, where they found the downloaded files.

Spencer argued that the search of his computer had been unconstitutional and that his right to privacy had been violated, pursuing the case through the court of appeal and on to the Supreme Court. The top court ruled that internet users had a "reasonable expectation of privacy" from their ISPs, but did not overturn Spencer’s conviction.

Supreme Court Justice Thomas Cromwell said in the ruling that the police should have obtained a warrant before getting Spencer’s information. But he said that the police had acted in good faith at the time, so the administration of justice would be impaired if the evidence they acquired at Spencer’s house was to be thrown out.

“It would be reasonable for an internet user to expect that a simple request by police would not trigger an obligation to disclose personal information or defeat (the Personal Information Protection and Electronic Documents Act) PIPEDA’s general prohibition on the disclosure of personal information without consent,” he said.

“The police, however, were acting by what they reasonably thought were lawful means to pursue an important law enforcement purpose. The nature of the police conduct in this case would not tend to bring the administration of justice into disrepute.

“Society has a strong interest in the adjudication of the case and also in ensuring the justice system remains above reproach in its treatment of those charged with these serious offences. Balancing the three factors, the exclusion of the evidence rather than its admission would bring the administration of justice into disrepute.”

Further implications

The Canadian Civil Liberties Association (CCLA) said in a statement that the ruling clarified a longstanding dispute over whether PIPEDA allowed police to obtain subscriber info without a warrant. The association is trying to get parts of PIPEDA declared unconstitutional for privacy reasons.

“The implications of the decision are substantial, and may play a significant role in CCLA’s ongoing Charter challenge to PIPEDA,” the association said. “In particular, the Court’s decision confirms CCLA’s view that PIPEDA is legislation to protect privacy, and cannot be used to undermine it.”

The decision may also affect two government bills, one intended to crack down on cyberbullying (C-13) and the other designed to update PIPEDA. The bill updating the privacy act currently includes provision that would make it easier for police to get subscriber info without a warrant, which could now be unlawful.

The cyberbullying bill has elements that would give law enforcement easier access to the metadata that ISPs and phone companies keep on calls and emails.

The Canadian government said in its parliament on Friday that it was reviewing the decision. Opposition MP Peter Julian (New Democratic Party) challenged the sitting Conservative Party of Canada government on the ruling, saying that it showed that his party and privacy experts had been right all along.

“This morning, the Supreme Court ruled what the NDP and privacy experts had been warning all along, that allowing police to pull private information from telephone companies without warrant was unconstitutional. Yet the Conservatives are steamrolling ahead with (the cyberbullying) Bill C-13, which also allows unconstitutional spying on Canadians,” he said.

“With yet another bill struck down by the Supreme Court, when will the Conservatives finally take a balanced approach that keeps Canadians secure without infringing on constitutional rights?” he asked.

Bob Dechert, parliamentary secretary to the minister of justice, said the government was looking at the ruling.

“We have just received the decision and we will review it. In addition, we will continue to crack down on cyberbullies and online criminals who work against and make our children and all Canadians unsafe. We will keep Canadians safe,” he said. ®

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