Tuesday, June 17, 2014

A Right To Anonymity

The Supreme Court of Canada has clarified that Canadians possess robust privacy rights on the internet.  In Regina v. Spencer (2014 SCC 43), the Court explored some of the contours of privacy rights in the context of online filesharing.  Justice Cromwell, writing for a unanimous Court, presented the lamentable facts of the case:
The police identified the Internet Protocol (IP) address of a computer that someone had been using to access and store child pornography through an Internet file sharing program.  They then obtained from the Internet Service Provider (ISP), without prior judicial authorization, the subscriber information associated with that IP address.  The request was purportedly made pursuant to s. 7(3)(c.1)(ii) of the Personal Information Protection and Electronic Documents Act (PIPEDA). This led them to the accused.  He had downloaded child pornography into a folder that was accessible to other Internet users using the same file sharing program.  He was charged and convicted at trial of possession of child pornography and acquitted on a charge of making it available.  The Court of Appeal upheld the conviction, however set aside the acquittal on the making available charge and ordered a new trial.
The Court upheld both Spencer's conviction for possession of child pornography and the Court of Appeal's order of a new trial on making these sordid materials available to others.
However, in arriving at its decision, the Court discussed the existence of an "anonymity right" that could, in some circumstances, protect even heinous behavior from the prying eyes of state actors such as the police:
Informational privacy is often equated with secrecy or confidentiality, and also includes the related but wider notion of control over, access to and use of information.  However, particularly important in the context of Internet usage is the understanding of privacy as anonymity.  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.  Subscriber information, by tending to link particular kinds of information to identifiable individuals may implicate privacy interests relating to an individual’s identity as the source, possessor or user of that information.  Some degree of anonymity is a feature of much Internet activity and depending on the totality of the circumstances, anonymity may be the foundation of a privacy interest that engages constitutional protection against unreasonable search and seizure.
According to the reasoning the Court employed in Regina v. Spencer, Spencer's anonymity rights, though important, were outweighed by more important concerns of justice:
The police, however, were acting by what they reasonably thought were lawful means to pursue an important law enforcement purpose.  The nature of the police conduct in this case would not tend to bring the administration of justice into disrepute.  While the impact of the Charter‑infringing conduct on the Charter protected interests of the accused weighs in favour of excluding the evidence, the offences here are serious.  Society has a strong interest in the adjudication of the case and also in ensuring the justice system remains above reproach in its treatment of those charged with these serious offences.  Balancing the three factors, the exclusion of the evidence rather than its admission would bring the administration of justice into disrepute.  The admission of the evidence is therefore upheld.
Nevertheless, the Court suggests that there are other circumstances when Canadian anonymity rights may shield unlawful - even heinous - behavior from police search.