The week before last, on June 13, the Supreme Court of Canada handed down a ruling that took me completely by surprise.
The case involved Matthew David Spencer. Police saw him downloading child pornography, though they didn’t know it was him. All they knew was the IP address from which the files were downloaded. They traced the address and went to the ISP to whom it belonged and did what they’ve done so many times in recent years. They simply asked the ISP for the name and the street address of the person who was using the IP address when they saw the child pornography being downloaded. No harm, right? The police simply asked, to save time. If the ISP refused, they’d go through channels to get a warrant. If the ISP co-operated, they’d save the time and trouble of getting a warrant.
The ISP did co-operate without a warrant, and as a consequence, police arrested Spencer and the court convicted him. The ISP’s simply handing over his name and address didn’t sit well with him so Spencer appealed his judgement. The Saskatchewan Court of Appeal affirmed his conviction stating that there is no reasonable expectation of privacy for basic subscriber information. Spencer took it to the Supreme Court of Canada and they ruled unanimously in his favour, which has enormous implications for all of us. I have no doubt that Spencer is disappointed because the Court let his conviction stand, stating that the police acted in good faith, and justice would not be served if they reversed the decision.
According to Michael Geist’s post, “Supreme Court Delivers Huge Victory for Internet Privacy & Blows Away Gov’t Plans for Reform,” the Court stated,
in the totality of the circumstances of this case, there is a reasonable expectation of privacy in the subscriber information. 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. A request by a police officer that an ISP voluntarily disclose such information amounts to a search.
The point being that a police search without a warrant is a definite no-no, and one does have a reasonable expectation of anonymity going about their business on the Internet. Because that expectation is entirely short-circuited by an ISP connecting an IP address with a user on request, police require a warrant. This flies in the face of what law enforcement and the Conservative government have been telling us. They’ve stated that subscriber information is not in any way private, and therefore should be available on request, if the ISP co-operates.
The timing of this Supreme Court decision is fortuitous. Not only has the Conservative government been telling us that police should have easy access to this information, but they have two bills they seem desperate to see made laws: Bill C‑13, which is intended to crack down on cyberbullying, and Bill S‑4, to be known as the digital privacy act. In particular, bill C‑13 would make it legal for companies to release customer information to police or government representatives simply for the asking, and protect those companies from any legal reprisal. Clearly, the Supreme Court decision states this is unconstitutional.
So given that their two bills are in a shambles, what does the Government plan to do? They seem to plan to ignore the Supreme Court’s decision. Minister of Justice, Peter MacKay, said,
The Supreme Court’s decision actually confirms what the government has said all along, that Bill C‑13’s proposals regarding voluntary disclosures do not provide legal authority for access to information without a warrant.
Yet bill c‑13 states,
487.0195 (1) For greater certainty, no preservation demand, preservation order or production order is necessary for a peace officer or public officer to ask a person to voluntarily preserve data that the person is not prohibited by law from preserving or to voluntarily provide a document to the officer that the person is not prohibited by law from disclosing.
(2) A person who preserves data or provides a document in those circumstances does not incur any criminal or civil liability for doing so.
It is true that ‘the person’ in question here is under no legal obligation to provide the information, but this is certainly splitting hairs. Telecom companies currently do provide this information on a vast scale. Legislating that they are able to do so without liability will only encourage them to do so more freely. And further, the current law states that this information may be requested by a
peace officer or public officer enforcing or administering this or any other Act of Parliament
In other words, police may request this type of information for the benefit of a police investigation of violation of the Criminal Code or any other federal law. Bill C‑13 removes this stipulation entirely.
The government is wasting their time and your money by pushing ahead with legislation that will, if passed, be struck down the first time it is challenged on constitutional grounds. Why? I really don’t know. Certainly Prime Minister Harper is accustomed to getting his way, and he doesn’t react well when he is denied. Make no mistake, in this case, he will be denied.
The Supreme Court is not the only dissenting voice. Earlier this week, Forum Research released the results of a poll detailing how Canadians feel about Bill C‑13. According to Techvibes,
The poll shows that 73% of Canadians oppose C‑13, with just 15% approving a ratio of nearly 5 to 1.
opposition spans every age group and is strongest among 18 – 34 year olds (78%) and 55 – 64 year olds (74%).
Harper will find no support among his own, either. Openmedia.ca reports,
Notably, the poll reveals that just 24% of Conservative voters support the bill, with 62% opposing it.
It’s time for the Conservatives to put these two bills to bed. They’re past being stubborn about it, having clearly shown that whatever agenda they’re working on has nothing to do with protecting Canadians.