Case Report – Warrantless search for internet subscriber’s data okayed by BCSC

On November 1st, the British Columbia Supreme Court 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.

There have been a number of recent Canadian cases about whether the police can investigate internet crime by asking an ISP to reveal the identity of the individual linked to an IP address that is associated with unlawful and anonymous activity. The cases turn on whether this investigatory tactic violates a reasonable expectation of privacy. Two factors have featured strongly in the analysis (1) the nature of the information obtained by the police and (2) the contractual terms between the individual and ISP.

In this case, Justice Meiklem of the BCSC endorsed the approach taken by the Ontario Superior Court of Justice in R. v. Wilson. He held that so-called “subscriber information” was not part of the applicant’s biographical core of personal information and held that the terms of service of his internet service plan weighed against a reasonable expectation of privacy. His Honour also commented, “It seems clear to me that, absent a finding of state agency, s. 487.014(1) [of the Criminal Code] provides the police with lawful authority to make a PIPEDA request for subscriber information, which an ISP is not prohibited by law from disclosing if it falls within the provisions of s. 7(3)(c. 1)(ii) of PIPEDA…”

R. v. McNeice, [2010] B.C.J. NO. 2131 (S.C.) (QL).

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