Case Report – Another subscriber data search challenge dismissed

5 Mar

On February 18th, the Ontario Superior Court of Justice held that the police conducted a lawful search by asking an ISP for a subscriber’s name and residential address 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 revealing of the “details of the lifestyle and personal choices of [an] individual” because it allows for the identification of an anonymous internet user. The Court nonetheless held the applicant lacked a reasonable expectation of privacy in the information given the terms of the contract his mother (and co-resident) had entered into with the ISP.

R. v. Vasic, 2009 CanLII 6842 (ON S.C.).

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3 Responses to “Case Report – Another subscriber data search challenge dismissed”

  1. Kevin March 6, 2009 at 6:46 pm #

    This strikes me as closer to the right answer … it’s good to recognize that this really is biographical information.

    However, I don’t think the description of Rogers AUP is right. I think clauses like that are meant to cover information that’s already available from a phone directory … they don’t mean that in no case will Rogers consider your name and address to be confidential. If that were the case, I would expect that anybody could call up Rogers and get your name and address based on your IP address, and clearly that’s not their practice.

    I’m also reminded of Justice Abella’s comments in Tessling, that the “expectation of privacy” is normative rather than descriptive. I’m not sure it’s right to say that any AUP can really remove what is otherwise a reasonable expectation of privacy. It probably doesn’t even change your subjective expectation of privacy, given that no one reads them. So I’m not sure referring to the AUP is that useful to the analysis at all.

  2. Dan Michaluk March 7, 2009 at 12:43 am #

    Thanks for another comment Kevin. It’s a very loose reading of the contract I agree! Your second point is much more fundamental. I have to say, as management counsel I like the idea of being able to freely contract for use and disclosure of personal information. (Employers are like ISPs in a sense, so I’ve thought of these cases as helpful to employers.) I took a brief look at the EFF’s submission in the Lori Drew case (it’s online), and recall that it made some arguments in a different context about why user agreements should not be used to deprive individuals of internet anonymity. You might be interested. Thanks again. Grateful for the thoughts. Dan.

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  1. The subscriber data issue and the normative basis for an expectation of privacy « All About Information - March 28, 2009

    […] of the telecommunications carriers’ terms of service, which led a commenter to this blog to question whether it is proper to give effect to terms of service that might conflict with societal norms. He […]

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