SCoC rules police need warrant for Internet identity

[oneh2obabe]

OTTAWA—The Supreme Court of Canada ruled Friday that it is a violation of Canadians’ constitutional privacy rights for police to obtain telecom subscribers’ information without a warrant to identify a child pornography suspect.

In a groundbreaking decision expected to reverberate in the debate over two new bills to broaden police powers to obtain such customer data, the high court ruled police need a judicially authorized search warrant to obtain basic information about a subscriber that could identify a person suspected of committing a criminal offence.

However, the 8-0 ruling written by Justice Thomas Cromwell, said the information the police obtained in the case of one Saskatchewan man could be used to uphold his conviction on possession of child pornography, and could be entered in a new trial on distribution charges that he’d earlier been acquitted of.

The judges found that given the seriousness of the offences and the fact that police were acting in good faith at a time when the law was uncertain, the evidence gathered in the search should be admitted, and that to exclude it would bring the administration of justice into disrepute, the court concluded.

But the overall principle in Friday’s ruling is clear: the judges embraced the notion that internet users have a reasonable expectation of privacy that may only be intruded upon with a court order.

“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,” wrote Cromwell.

“In this case, the police request that the ISP disclose the subscriber information was in effect a request to link Mr. Spencer with precise online activity that had been the subject of monitoring by the police and thus engaged a more significant privacy interest than a simple question posed by the police in the course of an investigation.

The high court found that the move by Shaw to turn over to police the identifying information — name, address, telephone number — that led to Matthew Spencer amounted to a search within the meaning of the Charter of Rights and Freedoms section 8 guarantee to be free of unreasonable search and seizure.

It said there is no obligation under the Personal Information Protection and Electronic Documents Act for telecoms to turn over subscriber data, and that the act did not give police new search and seizure powers. However the ruling does allow telecoms that become aware of criminal activity to turn data over to the police; they just cannot be compelled to without a warrant.

Matthew David Spencer was charged with possession and distribution of child pornography after he downloaded child pornography from the internet using LimeWire, a peer-to-peer file-sharing software program that connects users over the internet.

Spencer stored the child pornography in his shared folder and did not override the software’s default settings that made his shared folder accessible to other users from which they could obtain downloads of his files. A police officer had searched Spencer’s folder and discovered the pornographic files, but could not identify the owner of the folder.

Spencer later claimed he was unaware that others had access to the material, and so was acquitted at trial of a porn distribution charge. But the trial judge did not find the retrieval of subscriber information amounted to a search — and if it was, the judge ruled, it was reasonable within the law.

The police had determined the Internet Protocol address was assigned by Shaw Communications, and asked Shaw to turn over the identifying information. The telecommunications company identified his sister. The police in turn got a warrant and searched her home where they seized Spencer’s computer. He was charged with possession of child pornography and making child pornography available.

The Saskatchewan Court of Appeal had split over the case.

The high court looked at whether Shaw’s disclosure of the information was a violation of Spencer’s reasonable expectation of privacy, or if so, if the provisions in the law governing companies’ use of private data that the police relied on are constitutional.

Parliament is currently debating two bills that would have a big impact on privacy rights, C-13 and S-4.

Bill C-13 — the cyberbullying bill — outlaws the distribution of intimate images without consent of the person depicted but it also gives legal immunity to telecommunications and Internet service providers which turn over their customers’ data to police upon request without being compelled to do so by judicial warrant. It also lowers the legal threshold for authorities to make those requests.

S-4 would amend the same law examined in Friday’s ruling to broaden access to telecoms customer information.

http://www.thestar.com/news/canada/2014 ... rules.html

[the truth]

just a bunch loser judges making the rcmp's job harder thats all.
maybe some of these judges are concerned about what they have been watching on there computers at home

[Rosieodonell]

Nothing worng with this law at all. My father just retired this year and dealt with telecom partners to retireve people's information. He felt the new laws that was going in place were for lazy police officers and was redudant. He never had an issue getting information and if he needed a warrant to get information it was never an issue.

What this decision has done, has cemented the fact that people are innoncent until proven guilty. I think the biggest thing is going to be how this affects laws pertaining to people downloading material. Hopefully in canada, companies are going to have to prove someone actually downloaded the full material instead of just throwing around IP addresses with no proof people downloaded all the material.

this is one step in the right direction. the police stil have all the same tools they always had.

[Atomoa]

just a bunch loser judges making the rcmp's job harder thats all.se judges are concerned about what they have been watching on there computers at home

I'm sure you wont mind having the police open and read your mail coming to your house? Listen to your phone calls?

[Atomoa]

Interesting that Telus told me "for certain" that I illegally downloaded "Jack Reacher" (while both my partner and I were at work).

...we have netflix.
...we hate Tom Cruise.

So then Telus said that someone must have hacked my wireless to download a movie, apparently from my driveway as I have a big property and even though my network is secure, it cannot be accessed off my property line (as far as I know). Even though that sounds very unlikely, Telus suggested that if that didnt happen then it must be that I had a virus that downloaded the movie, even though all computers are powered off all day (lol).

Good thing it wasn't kiddie porn?

(I immediately left Telus btw)

[Rosieodonell]

Not sure about shaw,

But i have lots of friends that were hit by TELUS for these kind of actions. I laughed it off but they were very scared. These people can barely open their email.

The companies that contact TELUS don't have copies of your traffic showing that you downloaded the item just a record that a certain ip address connected to this record.

[Partmanpartfish]

If you're going to spend $700 per year on internet, you're a fool if you don't pop another $40 for a VPN service.

[the truth]

quote="Atomoa"]

just a bunch loser judges making the rcmp's job harder thats all.se judges are concerned about what they have been watching on there computers at home

I'm sure you wont mind having the police open and read your mail coming to your house? Listen to your phone calls?[/quote]

there more than welcome too , nothing illegal going on in my life.

[Omnitheo]

there more than welcome too , nothing illegal going on in my life.

As far as you know, but I've seen a fair share of anti-government posts and dissenting comments from you. What happens when that catches the government's attention (and don't pretend this stuff doesn't after all that we've learned about NSA and the Canadian equivalents lately). What happens when the police start looking through your phone records and emails, and find that you've spoken to someone who is the cousin of someone who participated in an anti-government rally, and they feel they need to seize your computers without a warrant?

You people always say "it doesn't matter, i'm not doing anything wrong"
Then again, I'm sure all these people thought the same

[bob vernon]

"Nothing illegal going on in my life".

That's the case for most people. But some in the political game want to be able to label you as a supporter or an enemy. So they can target you as a voter. And give you a reminder on election day to get out and vote if you are a supporter. And if you're identified as a supporter of an opposition party try sending you to a non-existent voting place. Or make sure your taxes get audited a little closer.

By allowing fishing expeditions into everybody's computer, we open the door for planting stuff, incriminating stuff, onto the computers of those who the state fears. And then the smear campaign can start.

Most of the Supreme Court justices were appointed by Steve, and even these Conservative judges can see that warrantless searches violate the Canadian constitution. Most of the changes to Canadian law that Harper is putting forward have nothing to do with making Canada a better place to live, they have everything to do with bending the rules to keep him in power.

[hobbyguy]

I'm becoming a big fan of the SCoC.

I have to wonder what impact this ruling will have on Harper's new billion dollar "spook palace". If they can't spy on us without a warrant, starts to become the redundant and repugnant "white elephant" it was to begin with.

"“You know something is wrong when the government declares opening someone else’s mail is a felony but your internet activity is fair game for data collecting.”
― E.A. Bucchianeri"