Are you an online consumer of child pornography? Well I have some bad news for you! The Ontario Court of Appeal ruled last week that you really don’t have an expectation of privacy when it comes to your ISP turning over your personal information, Charter of Rights be damned. But what if you are doing something less skeevy than child porn? Well that’s a bit trickier. Let’s dive in.
Before we get into the juicy deets of the case, let’s get a preliminary matter out of the way. Even though your humble blogger practices in Quebec, an Ontario Court of Appeal case is a big deal. The case is criminal law, meaning that it is the same all over Canada. And the Ontario CA is the most important Appeals Court in the country, as its jurisdiction covers the Center of the Universe. So pay attention!
OK let’s do this. In R v. Ward, Mr. Ward was a very bad man. He sure liked his child porn, what with the 30,000+ images and almost 400 videos the police found on his computer. And how did the boys in blue find Mr. Ward? Well that’s where it gets interesting.
In the course of an investigation, the police tracked files downloaded and other internet activity from a website, carookee.com to three particular IP addresses. The site is German, and the Germans had forwarded the info to the RCMP. The police then went to the owner of those IP addresses, good ol’ Bell Sympatico, and asked (politely) if they could find which customer of theirs used them. Bell said sure, here ya go! We don’t need no stinking warrant! Here’s Mr. Ward’s name and address, have fun. Mr. Ward was subsequently arrested and found guilty of possessing and accessing child pornography, and received an 11-month sentence. Did you know you can get a two-year sentence for just a joint? But I digress.
Mr. Ward didn’t deny that the child porn was his, but stated that his rights under the Canadian Charter of Rights and Freedoms had been violated. The trial court was having none of that, so he appealed. And the Court of Appeal agreed, no violation, the conviction stands.
So what Charter right was being debated? It is section 8, which reads:
Everyone has the right to be secure against unreasonable search or seizure.
Well obviously this was reasonable! Duh! Ward argued that this section provided him the right to use the internet anonymously. The Court summarized his position thusly:
The appellant [Ward] is arguing that he had a reasonable expectation that he could access and use the Internet anonymously and that s. 8 protects him against state access to information in the hands of third parties that would allow the state to identify the appellant’s activities on the Internet, unless the state can satisfy the reasonableness requirement of s. 8. The appellant in essence claims that his privacy rights under s. 8 protect his anonymity while engaged in certain activities
The way the Charter works, if a Court finds that your rights were violated in obtaining certain evidence, that evidence must be excluded (that’s section 24(2) if you care). So Ward wanted the evidence excluded. The Court of Appeal said ha! You wish, pedophile scum (I’m paraphrasing).
First, the Court explains that s. 8 is pretty broad, as courts over the years have stated that it is not just about search and seizure, but a general right to privacy, which includes privacy of your information. You have a “reasonable expectation of privacy” because of section 8. The Court blah-blahed about that for a while, when it could have just said what it eventually said in one sentence:
the reasonable expectation of privacy inquiry is contextual and looks at the totality of the circumstances
So the Court looked at the circumstances, and at two documents – PIPEDA, the Federal statute that requires private actors to protect personal information, and the Terms of Service of Bell Sympatico. Circumstances – well, this guy’s pedophile scum who likes child porn! And child porn is bad. On the other hand, he went out of his way to be anonymous on the internet, so he really wants his privacy!
The Court said that PIPEDA was not violated, because the police request was very narrow, only wanting the name and address related to the IP addresses, and not really Ward’s browsing habits or activities or anything like that. Then, with respect to Bell’s contract, the Court writes:
Like PIPEDA, the contractual terms speak both of Bell Sympatico’s duty to protect the privacy of clients’ information and its willingness to disclose information in relation to investigations involving the alleged criminal misuse of its services
Well there you go! Child porn is “criminal misuse of its services”. QED. Game over for Mr. Ward.
Analysis fun time!
Well I think we can all agree that Mr. Ward probably got the conviction he deserved. But the question that really comes out of this case is the much more general question of whether it will be a section 8 violation of the reasonable expectation of privacy in other cases when the police want subscriber information from an ISP. The Court talks about this, though only in one paragraph. But it’s probably the most important paragraph of this case, so I’m sorry, you’re going to have to read the whole thing:
I stress that the conclusion in this case is based on the specific circumstances revealed by this record and is not intended to suggest that disclosure of customer information by an ISP can never infringe the customer’s reasonable expectation of privacy. If, for example, the ISP disclosed more detailed information, or made the disclosure in relation to an investigation of an offence in which the service was not directly implicated, the reasonable expectation of privacy analysis might yield a different result. Similarly, if there was evidence that the police, armed with the subscriber’s name and address, could actually form a detailed picture of the subscriber’s Internet usage, a court might well find that the subscriber had a reasonable expectation of privacy. Those cases will be considered using the totality of the circumstances analysis when and if they arise.
That’s some quality waffling. If the circumstances are different, the result might be different. If the request for information is different, the result might be different. If the police get more detailed info about your internet use, the result might be different. We’ll just have to wait and see!
So my analysis is this – if you do things on the internet, you might have a reasonable expectation of privacy. Possibly. Maybe.