Privacy in Subscriber Data 

publication 

June 2014

Privacy Bulletin
Nicholas Howard, Student-at-Law
On Friday, June 13, 2014, the Supreme Court of Canada ("SCC") released R v Spencer, 2014 SCC 43, a unanimous decision with significant implications for online privacy. The court made two important findings:
  • Online privacy includes the ability to use the internet anonymously; and
  • Users can have a reasonable expectation of privacy in their subscriber data.

By drawing a link between users' subscriber information and internet usage data like browsing patterns or downloads, the SCC found "a privacy interest beyond that inherent in the person's name, address and telephone number." In order to attribute particular online activities to an individual, police and government agencies or departments will now have to obtain a warrant or production order before requesting subscriber information from Internet Service Providers ("ISP").

Background

Matthew Spencer downloaded child pornography into a folder in a file sharing program. Using the Internet Protocol ("IP") address associated with Spencer's computer, police requested subscriber information from Spencer's ISP, Shaw Communications. The police did not have a warrant or production order to obtain the name, address and telephone number associated with Spencer's IP. Using the subscriber information, the police charged Spencer with possession of child pornography; he was convicted at trial. Appealing his conviction, Spencer argued that the police request for subscriber information was an illegal search and seizure under section 8 of the Charter. The Saskatchewan Court of Appeal found that the request and receipt of the information was not a search under section 8.

The Supreme Court assessed three factors to determine whether Spencer had a reasonable expectation of privacy in his subscriber data: 1) the subject matter of the alleged search; 2) the nature of the privacy interest; and 3) the reasonableness of Spencer's expectation given the contractual and statutory framework.

1.    Subject matter of the search: a privacy interest in subscriber data

It appears that internet users possess a privacy interest in their subscriber information when its use would reveal their internet usage habits. In defining the privacy interests at stake, the Court looked first at the subject matter of the police search. The Court emphasized a prior decision which defined the type of information covered by section 8 as "information which tends to reveal intimate details of the lifestyle and personal choices of the individual" [emphasis in original].1 The ability to reveal an individual's online activity was enough to find a privacy interest in a user's subscriber information.

2.    Online anonymity and the nature of the privacy interest

The Court's discussion of the nature of the privacy interest introduced a new concept in Canadian cases: anonymity. The SCC found that informational privacy includes online anonymity:

The user cannot fully control or even necessarily be aware of who may observe a pattern of online activity, but by remaining anonymous — by guarding the link between the information and the identity of the person to whom it relates — the user can in large measure be assured that the activity remains private.2

However, the Court was careful to clarify that there is no right to anonymity online. The privacy interest in anonymous internet use is simply one factor in assessing an individual's reasonable expectation of privacy on the facts of a case.

3.    The reasonableness of Spencer's expectation of privacy

The reasonableness of an internet user's expectation of privacy will depend on the particular circumstances in a case; statutory and contractual provisions are just one factor in the analysis. However, the SCC's decision in Spencer found that the language in the Personal Information Protection and Electronic Documents Act ("PIPEDA") is not a relevant consideration in determining the reasonableness of a user's expectation of privacy. Since most ISPs' use standard form terms and policies, users will likely have a reasonable expectation of privacy when using a private computer in the home.

The Court looked to the PIPEDA and the contract with Shaw to determine whether Spencer's expectation of privacy was reasonable in the circumstances. Section 7(3)(c.1)(ii) of the PIPEDA allows disclosure of information to a government institution when that body has identified its "lawful authority to obtain the information"; Shaw's privacy policy permits the company to disclose information when "required by law". By relying on those provisions, the SCC found that a warrant or production order was necessary to give a request for information lawful authority. The Court used Shaw's "confusing and unclear" privacy policy to find support for a reasonable expectation of privacy, since it narrows the circumstances in which the company could disclose subscriber information. The Court also adopted a "cautious" approach when determining the impact of a provision in a standard form contract like Shaw's terms of use and privacy policy.3

Final comments

It is important to note that police retain the ability to request information without a warrant in pressing circumstances; for example, where the information is required to prevent imminent bodily harm.

The Spencer decision will likely have a significant impact on Bills C-13 and S-4, which would permit further warrantless government access to information about internet users. Those bills, which the government had previously claimed were compatible with privacy laws, may conflict with the SCC's June 13th decision. Since the Bills are both in committee, it will be interesting to watch the discussion and changes which take place in Parliament and the Senate over the next weeks and months. Though R v Spencer was a criminal case, the Court's discussion of the principles of online privacy and the importance of anonymity will have an impact in other contexts as discussions of online privacy continue.

by Éloïse Gratton, Sandra Sbrocchi and Nicholas Howard, Student-at-Law 

1 Para 27, citing R. v. Plant, 1993 CanLII 70 (SCC).

2 Para 46.

3 Para 54.

a cautionary note

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2014