The subscriber data issue and privacy expectations based on norms

If you’re a regular reader of this blog, you know I’ve been covering the recent string of cases in which the Crown has successfully answered Charter applications challenging the identification of internet users through simple letter requests to telecommunications carriers. The Crown has been successful in every case but one which is now subject to a significant appeal to the Ontario Court of Appeal.

The cases have turned strongly on the wording 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 raised the Supreme Court of Canada’s warning that subjective expectations alone should not give government a license to intrude in this famous quote from Tessling:

I should add a caveat.  The subjective expectation of privacy is important  but its absence should not be used too quickly to undermine the protection afforded by s. 8 to the values of a free and democratic society.  In an age of expanding means for snooping readily available on the retail market, ordinary people may come to fear (with or without justification) that their telephones are wiretapped or their private correspondence is being read.  One recalls the evidence at the Watergate inquiry of conspirator Gordon Liddy who testified that he regularly cranked up the volume of his portable radio to mask (or drown out) private conversations because he feared being “bugged” by unknown forces.  Whether or not he was justified in doing so, we should not wish on ourselves such an environment.  Suggestions that a diminished subjective expectation of privacy should automatically result in a lowering of constitutional protection should therefore be opposed.  It is one thing to say that a person who puts out the garbage has no reasonable expectation of privacy in it.  It is quite another to say that someone who fears their telephone is bugged no longer has a subjective expectation of privacy and thereby forfeits the protection of s. 8.  Expectation of privacy is a normative rather than a descriptive standard.

The recent subscriber data cases have not featured significant discussion about societal norms and anonymous internet use. The most detailed consideration of what ought to be was in R. v. Friers (from last September and only recently released on Quicklaw). The Court dismissed an argument that a telecommunications carrier cannot “unilaterally abrogate a defendant’s Charter rights.” Nadel J. squarely framed the issue as one of norms, noting “…I am of the view that the broad and neutral framing of the question to be answered is whether in a society such as ours do persons who use the internet on terms that their illegal use of it will not attract confidentiality have a reasonable expectation of privacy?” He then held that the defendant had no expectation of privacy in his trading of child pornography, which itself was conducted openly on the internet.

For more on the reasonable expectation of privacy test and its limits, see this recent article by Bruce Schneier, which links to the most recent American academic commentary on the expectation of privacy test. For some Canadian academic commentary, see this scholarly article by Ian Kerr and Jena McGill of University of Ottawa.