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Supreme Court upholds Internet users’ privacy

Legislation & RegulationSecurity

Internet companies cannot release their customers’ personal information to police authorities without a warrant, according to a ruling on Friday by Canada’s Supreme Court which upheld individual right to anonymity – particularly on the Internet.

The decision involved the case of Saskatchewan resident Matthew David Spencer who was charged and convicted in 2007 of possession of child pornography. He was tracked and later arrested after police saw saw pornographic material being downloaded to his Internet Protocol (IP) address.

His case is being watched closely by police authorities, Internet service providers and privacy advocates across the country since it focuses on the thorny issues of what level of privacy can users expect online and the extent and circumstances for which police can compel providers to provide them with customer information.

Police found Spencer’s child pornography content online using a software program available to the public and a detective asked Shaw Communications for his IP address. Shaw provided police the street address of Spencer’s sister which the company identified as the person with an Internet contract with them. The police then obtained a search warrant which led to Spencer’s arrest.

Spencer, however, appealed his conviction arguing that the police search was unconstitutional and his rights were violated since authorities did not obtain a warrant to conduct the search.

He later brought his case to the Supreme Court after the Court of Appeals in Saskatchewan ruled that there was no reasonable expectation of privacy for basic Internet subscriber data.

Friday’s ruling also casts a shadow on certain provisions of Bill C-13, also known as the Protecting Canadians from Online Crime Act or the anti-online bullying bill. Many privacy advocates contend that rather than combat cyber bullying, the bill would make it easier for Canadian ISPs to voluntarily permit authorities to conduct online surveillance and metadata collection without a court order.

“Anonymity is an important safeguard for privacy interest online,” wrote Justice Thomas Cromwell in the Supreme Court’s ruling. ”In my view, in the totality of the circumstances of this case, there is a reasonable expectation of privacy in subscriber information.”

Cromwell said disclosure of such information will often result in the identification of a user “with intimate or sensitive activities being carried out online, usually with the understanding that these activities would be anonymous.”

OpenMedia.ca, a community-based organization supporting open Internet, said the ruling means that the federal government’s warrantless disclosure provisions in Bill C-13 are unconstitutional.

“The ruling means that the widespread practice of government authorities acquiring Canadians’ private information form telecom providers without a warrant must now come to an end, ” the organization said in a statement.

“All along we’ve said the government’s online spying Bill C-13 is reckless and irresponsible and today’s ruling vindicates those concerns,” said Steve Anderson, executive director of OpenMedia.ca. “Now the government will finally have to take heed and withdraw their extreme spying provisions from their bill.”

While the Supreme Court said police should have obtained the search warrant before asking the Shaw Communications for Spencer’s information, the court dismissed Spencer’s appeal saying the police acted in good faith. The court said justice would be impaired if the evidence obtained by the police were to be thrown out.

With that, Spencer stands to face a new trial on charges of making child pornography available to others.