From CBC.ca

Internet users' privacy upheld by Canada's top court

Internet providers can't provide customer names and addresses to police without a warrant

Posted: Jun 13, 2014

The Supreme Court says it's reasonable for internet users to expect their online activities to be anonymous and for their subscriber information to be private.

Related Stories

• Daniel Therrien grilled on views about police powers in cyberbullying bill
• Federal privacy law faces constitutional challenge
• Telecoms refuse to release information on private data given to feds
• Telecom giant Rogers got 175,000 info requests from government

External Links

• Supreme Court Judgement
• Supreme Court: Reasons for Judgement
• Summary of Supreme Court case

(Note: CBC does not endorse and is not responsible for the content of external links.)

Internet service providers can't give customer names, addresses and phone numbers to police without a search warrant, Canada's top court has ruled in a unanimous decision released this morning.

The decision upholds Canadians' right to privacy and anonymity in their online activities. It also means parts of the cyberbullying and digital privacy bills that are currently before the House of Commons may be unconstitutional.

• Read the Supreme Court's reasons for internet privacy decision 

Friday's decision concerned the case of Matthew David Spencer, of Saskatchewan, who was charged in 2007 and convicted of possession of child pornography after a police officer saw illegal files being downloaded to his IP address - a series of numbers representing the internet identity of a device such as a computer.

The police officer went to Spencer's internet service provider (ISP), Shaw, and asked for the real identity of the customer attached to the IP address. The police officer did not have a search warrant, but was given subscriber information for Spencer's sister, allowing police to track him down. 

Spencer appealed his conviction, arguing that the search was unconstitutional and his rights were violated.

The Saskatchewan Court of Appeal ruled there is no reasonable expectation of privacy for basic internet subscriber information, prompting Spencer to appeal to the Supreme Court of Canada.

The Supreme Court disagreed that there is no reasonable expectation of privacy for the data obtained by police.

"In my view, in the totality of the circumstances of this case, there is a reasonable expectation of privacy in the subscriber information," Supreme Court Justice Thomas Cromwell wrote.

"The 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."

Warrantless search 'unreasonable'

He added, "A warrantless search, such as the one that occurred in this case, is presumptively unreasonable. The Crown bears the burden of rebutting this presumption."

Although the Supreme Court set limits on when internet providers can disclose customer information, it dismissed Spencer's appeal.

The Supreme Court of Canada says in a decision released Friday that internet users have a right to privacy pending a search warrant.

It said police should have obtained a warrant before asking Shaw for the customer information. But it also said police acted reasonably and in good faith, so the administration of justice would be impaired if the evidence gathered by searching Spencer's home in this particular case were thrown out of court.

The top court decision means Spencer would be subjected to a new trial, on a charge of making child pornography available to others.

The decision could affect two federal government bills before the House of Commons, rendering parts of them unconstitutional:

• Bill C-13, which is intended to crack down on cyberbullying, but includes provisions that would give police easier access to the metadata that internet service providers and phone companies keep on every call and email from their customers.
• Bill S-4, known as the digital privacy act, which would update the Personal Information Protection and Electronic Documents Act that governs how the private sector handles private information. It includes provisions that also make it easier for police to obtain basic subscriber information without a warrant.