The Power of Perspectives

The Canadian Bar Association

Yves Faguy

R. v. Spencer reactions

June 16 2014 16 June 2014

It will surely go down as one of the most important privacy decisions rendered by the Supreme Court of Canada, so here’s a round-up of reactions to R. v. Spencer.

David TS Fraser  breaks down the key points:

I am still digesting the decision, but some very important conclusions from the case:

  • Internet users have a reasonable expectation of anonymity in their online activities. Contrary to the views of most police agencies and the government of Canada, this information is not innocuous "phone book information" but "Rather, it was the identity of an Internet subscriber which corresponded to particular Internet usage."
  • A police request to the ISP for customer information amounts to a "search" for Charter purposes
  • The fact that an ISP may be able to disclose information pursuant to s. 7(3)(c.1) of PIPEDA or the terms of use is relevant to the expectation of privacy, but not determinative of it
  • The request by the police had no "lawful authority" since they had no authority to compel the production of the information

There has been much controversy surrounding the term "lawful authority" in PIPEDA, which permits an organization to disclose personal information without consent in connection with an investigation where the police have identified their "lawful authority" to obtain the information. The police have generally argued that an investigation is sufficient to satisfy that. The Court disagreed...

All of which spells bad news for the government’s privacy bills, writes Michael Geist:

For weeks, the government has been claiming that the provisions in Bill C-13 and S-4 were compatible with the law. Last week, the Supreme Court of Canada disagreed, issuing its decision in Spencer on the legality of voluntary warrantless disclosure of subscriber information. The court ruled that there was a reasonable expectation of privacy with subscriber information and that voluntary disclosure to police may constitute an illegal search.

In a separate post, noting that “expanded voluntary warrantless disclosure strategy is effectively dead,” Geist looks ahead:

The government could adopt the "bury our heads in the sand approach" by leaving the provisions unchanged, knowing that they will be unused or subject to challenge. That would run counter to the spirit of the Supreme Court ruling and do nothing to assist law enforcement. The better approach would be to directly address the problems in the bills and the current legislation. The first involves voluntary warrantless disclosure of subscriber information. Those provisions in C-13 and S-4 should be dropped from the bill. Moreover, the existing PIPEDA provisions should also be eliminated. In their place, a new subscriber information warrant could be developed that ensures court oversight, an appropriate standard given the Supreme Court of Canada's finding of the privacy import of such information, and a system to allow law enforcement to apply for a subscriber information warrant expeditiously.

Second, the transmission data warrant (typically referred to as metadata) in C-13 should be amended as many recommended to the committee. Numerous witnesses (myself included) argued that the reason to suspect standard was too low given the privacy implications of metadata and that the reason to believe standard was more appropriate. Given the Spencer decision, the transmission data warrant is a court challenge waiting to happen and adopting the higher standard would provide far more legal certainty.

Michael Spratt suggests that the ruling reflects well on the new Praivacy Commissioner:

Last week Canada’s new Privacy Commissioner - Daniel Therrien - appeared before the House of Commons Justice Committee and delivered a powerful indictment against the Conservative Party’s cyber-bullying and lawful access legislation - Bill C-13.

If there was any question that the Conservatives had appointed a lapdog as Privacy Commissioner - and I did have some concerns - Mr. Therrien has quickly proven the critics wrong.

Mr. Therrien concurred with the evidence of the legal, privacy, and technological experts (including me) who testified that personal internet information is highly private and the lax standards for obtaining that data (including voluntary disclosure by telecommunication companies) is too permissive and potentially unconstitutional.

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