Case Report – Ont. S.C.J. okays warrantless search of subscriber data

20 Feb

On February 10th, the Ontario Superior Court of Justice dismissed a Charter application that challenged a letter request made by the police to an internet service provider for the name and address of an account holder associated with a specific IP address at a specific point in time.

The Court held that the applicant had no expectation of privacy in the information disclosed, which the police used to obtain a warrant and lay child pornography charges. The Court narrowly construed the personal information collected in the search as one’s name and address (or the name and address of a cohabiting spouse) and held that this information is not “biographical information” that is protected by the Charter. It also relied on the service provider’s contract of service, which expressly permitted the transfer:

In addition, in this case the terms of the contract with the internet provider is one of the factors to be considered in assessing whether the asserted expectation of privacy is reasonable in the totality of the circumstances. That contract includes an agreement that the service provider could disclose any information necessary to satisfy any laws, regulations or other governmental request from any applicable jurisdiction. Further, the agreement contained a provision that by subscribing to the service, one consents to the collection, use and disclosure of personal information as described in the Bell Customer Privacy Policy and the Bell Code of Fair Information Practices. This privacy statement includes a provision that Bell Canada may also provide personal information to law enforcement agencies. Therefore by virtue of the contractual terms on which the internet service was provided an expectation of privacy is not reasonable

Thank you to David Fraser for digging up a copy of the decision!

R. v. Wilson (10 February 2009), 4191/08 (Ont. S.C.J.).

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5 Responses to “Case Report – Ont. S.C.J. okays warrantless search of subscriber data”

  1. Kevin February 20, 2009 at 1:34 pm #

    Among the many things I don’t get about this decision … the name and address of an anonymous internet user is not “core biographical information”?? That must be why there are all those biographies written that don’t disclose who the subject matter is.

    The problem is they analyse the question completely devoid of context. Sure, your name and address aren’t very private when you are giving me directions to your house. But if I get your name and address from the local STD clinic, or your credit card company, I’m willing to bet you consider that pretty private.

    I don’t know how any internet user could possibly believe there’s no reasonable expectation of privacy in their identity. That just so fundamentally inconsistent with the nature of the internet.

  2. Dan Michaluk February 20, 2009 at 1:43 pm #

    Thanks Kevin. I agree there seems to be disconnect in the discussion about what personal information was revealed in the request. The same analysis is applied in Ward and Friers, which the Court relies heavily on. The SCC decision in Plant plays in heavily too, but I’m not sure it’s analogous. D.

Trackbacks/Pingbacks

  1. Case Report - Another subscriber data search challenge dismissed « All About Information - March 5, 2009

    […] in order to link that information with a known IP address. Unlike in its February 10th decision in Wilson, the Court accepted that the disclosure of a subscriber’s name and residential address is […]

  2. Case Report – Ont. SCJ says no expectation of privacy in data stored on work computer « All About Information - May 13, 2009

    […] This might reveal a judge who was struggling with the idea that the black letter of policy can nullify the expectations that otherwise might be engendered by personal use. For now, this view remains the minority view (if that) and is reinforced by the recent “lawful access” decisions reported on this blog as typified by R. v. Wilson. […]

  3. Don't expect your work computer to be private | NJN Network - May 13, 2009

    […] This might reveal a judge who was struggling with the idea that the black letter of policy can nullify the expectations that otherwise might be engendered by personal use. For now, this view remains the minority view (if that) and is reinforced by the recent “lawful access” decisions reported on this blog as typified by R. v. Wilson. […]

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