Court decision a strong defense of Internet privacy making aspects of Conservative government's proposed legislation unconstitutional.
Ottawa (13 June 2014) — The Supreme Court has released a decision in R. v. Spencer (2014 SCC43) regarding the legality of voluntary warrantless disclosure of basic subscriber information to law enforcement. In a unanimous decision the court has given a strong endorsement of Internet privacy, underscoring the importance of privacy for subscriber information, the right to anonymity, and the need for police to obtain a warrant for subscriber information.
This ruling, written by Justice Thomas Cromwell (Prime Minister Harper's appointee), presents a direct challenge to aspects of Bills C-13 (i.e. lawful access) and to S-4 (Personal Information Protection and Electronic Documents Act (PIPEDA)). Many critics, including the National Union of Public and General Employees (NUPGE), have raised concerns about how these pieces of legislation will expand the scope of warrantless, voluntary disclosure of personal information. The Court's decision makes aspects of these two Bills unconstitutional.
The Court's ruling
This decision is an important one for Internet privacy both now and for well into the future.
The case involved a 19-year-old Saskatchewan man charged with possessing and distributing child pornography after police used his Internet address to get information from his Internet service provider without first obtaining a search warrant. His lawyers argued that this violated his constitutional right to be protected from unlawful search and seizure.
The Supreme Court agreed. "A warrantless search, such as the one that occurred in this case, is presumptively unreasonable," Justice Thomas Cromwell wrote for the majority.
While the Court set limits on disclosure for Internet providers, it ultimately dismissed Spencer's appeal,saying that the police should have first obtained a warrant, but they acted reasonably and in good faith.
Implications of the decision
The key findings of the Court include:
- a recognition that there is a privacy interest in subscriber information (the information is much more than a simple name and address, particularly in the context of the Internet)
- an understanding of informational privacy that identifies three distinct issues: privacy as secrecy, privacy as control, and privacy as anonymity (within the context of Internet usage)
- a recognition of a reasonable expectation of privacy by the user.
The immediate implications of this decision is that aspects of Bills C-13 and S-4 are most likely unconstitutional. Senate debate around Bill S-4 has been delayed to consider the ruling.
The National Union of Public and General Employees (NUPGE) is one of Canada's largest labour organizations with over 340,000 members. Our mission is to improve the lives of working families and to build a stronger Canada by ensuring our common wealth is used for the common good. NUPGE