Privacy Advisor

CANADA—Impact and considerations of EO investigation

November 1, 2012

Jager_JohnBy John Jager, CIPP/US, CIPP/G, CIPP/C

In early October 2012, the Ontario Court of Appeal released two decisions, R. v. Ward, 2012 ONCA 660, and R. v. Cuttell, 2012 ONCA 661, which dealt with the admittance of evidence obtained by means of a search warrant based on information obtained from plaintiffs’ Internet Service Provider (ISP). The Court of Appeal noted that the practice of the police “seeking and obtaining customer information from ISPs and using that information to obtain search warrants has been constitutionally challenged as an unreasonable search and seizure in several cases” and that this was the first time this court was addressing the constitutionality of this practice.

In Ward, in the course of a child pornography investigation, police requested from Bell Sympatico the name and address of a subscriber. Based on a protocol agreed to by a number of Canadian ISPs and the police, Sympatico turned over the subscriber information, which the police subsequently used, in conjunction with other information collected during the investigation, to obtain search warrant. A resultant search of the appellant’s residence and computer yielded over 30,000 images and 373 videos. At trial, the appellant claimed that the search of his residence and computer violated his rights under s. 8 of the Canadian Charter of Rights and Freedoms and requested that the evidence be declared inadmissible. The trial judge admitted the evidence, and the appellant was convicted.

Decision of the trial Judge

In determining if there was a reasonable expectation of privacy in the subscriber information, the trial judge focused on three factors: whether the requests for and disclosure of that information by the ISP conformed to the federal legislation governing disclosure of customer information to law enforcement by private-sector organizations; whether the terms of the service agreement between the appellant and the ISP addressed both the ISP's commitment to maintaining the confidentiality of client information and its willingness to disclose client information to law enforcement authorities in connection with criminal investigations involving allegations of the criminal misuse of the ISP's services, and whether the nature of the information turned over by the ISP; i.e., the appellant’s name and address, was of the kind that would reveal intimate personal details or lifestyle choices. The trial judge found that, in looking at the totality of the evidence, the appellant had no objective reasonable expectation of privacy.

Court of Appeal decision

In its analysis, the Court of Appeal noted that s. 8 of the charter protects reasonable expectations of privacy and, in this case, the appellant had a subjective expectation of privacy in respect of information revealing his Internet activity. He clearly intended to conceal his identity by not revealing his identity when accessing the site and using temporary anonymous email addresses. However, the court found that the police request complied with section 7(3)(c.1(ii)) of the Personal Information Protection and Electronic Documents Act (PIPEDA); the nature of the information sought is relevant and the police request was specific and narrow—it only sought the individual’s name and address, the information in and of itself revealed nothing personal about the appellant or his Internet usage, and the request only identified three specific instances of Internet activity—the request referred specifically to an investigation of child exploitation offences under the Criminal Code, and the ISP's service was an integral and essential component of the offences being investigated. Importantly, the court found that while there is no legislative authority underlying the terms of the service agreement between the ISP and the appellant, a reasonable informed person would not expect that society should recognize that the appellant had a reasonable expectation of privacy in respect of subscriber information held by the ISP. In Cuttell, the Court cited its analysis in Ward in arriving to a similar conclusion.

While in this case the appellant was not successful in his attempt to bar the evidence obtained by means of the search warrant, the court was careful to note that this decision does not suggest that disclosure of customer information by an ISP can never infringe the customer’s reasonable expectation of privacy; the court may reach a different decision if the ISP was to disclose more detailed information, if the ISP made a disclosure in relation to an investigation of an offence in which the service was not directly implicated, or 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. 

John Jager, CIPP/US, CIPP/G, CIPP/C, is vice president of research services at Nymity, Inc., which offers web-based privacy support to help organizations control their privacy risk. He may be reached at john.jager@nymity.com.