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Internet Engages Privacy as Anonymity

  • August 16, 2014
  • Clayton Rice, K.C.

In a judgment released on June 13, 2014, the Supreme Court of Canada unanimously recognized that Canadians have a reasonable expectation of privacy in subscriber information held by their internet service providers.

In R. v. Spencer, 2014 SCC 43 Justice Thomas A. Cromwell concluded, at para. 66, that the, “…disclosure of subscriber 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…[internet service provider]…voluntarily disclose such information amounts to a search.”

In reaching the conclusion that subscriber information is constitutionally protected Justice Cromwell engaged in an analysis of informational privacy which includes an understanding of privacy as anonymity. He stated, at para. 43, that: “Anonymity permits individuals to act in public places but to preserve freedom from identification and surveillance.”

Justice Cromwell relied upon the court’s previous decision in R. v. Wise, [1992] 1 S.C.R. 527 which recognized the right to privacy in public places. In Wise the Supreme Court held that the ubiquitous monitoring of a vehicle’s whereabouts on public highways amounted to a violation of a suspect’s reasonable expectation of privacy. In that case Mr. Justice Gerald La Forest explained, at p. 558, that: “In a variety of public contexts, we may expect to be casually observed, but may justifiably be outraged by intensive scrutiny. In these public acts we do not expect to be personally identified and subject to extensive surveillance, but seek to merge into the situational landscape.”

Justice Cromwell then went on to conclude, at para. 44, that: “The mere fact that someone leaves the privacy of their home and enters a public space does not mean that the person abandons all of his or her privacy rights, despite the fact that as a practical matter, such a person may not be able to control who observes him or her in public. Thus, in order to uphold the protection of privacy rights in some contexts, we must recognize anonymity as one conception of privacy.”

Recognizing that anonymity is one conception of informational privacy is particularly important in the context of Internet usage. The Internet has increased the quantity and quality of information that is stored about Internet users. Browsing logs, search engines and cookies are but three examples which provide detailed information about users’ interests, search terms and consumer habits. Justice Cromwell concluded, at para. 47, that. “…the identity of a person linked to their use of the Internet must be recognized as giving rise to a privacy interest beyond that inherent in the person’s name, address and telephone number found in the subscriber information.”

In the last two posts I discussed opinions of the Supreme Court of Canada where the court has moved to unanimity on core issues of privacy: R. v. Tse, [2012] 1 S.C.R. 531 on the right to notification and R. v. Vu, [2013] 3 S.C.R. 657 on computer searches. We may now add Spencer to an emerging reaffirmation of Charter values. These judgments are to be applauded. They are models of their kind.

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