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​Canadian users’ online privacy upheld by top court

Published time: June 14, 2014 13:07
AFP Photo/Robyn Beck

AFP Photo/Robyn Beck

Law enforcement authorities in Canada require a search warrant to obtain users’ private data from the internet providers during investigations. The Supreme Court’s unprecedented ruling ensures the Canadians’ right for online privacy and anonymity.

The top court’s ruling came in an appeal of a 19-year-old Matthew David Spencer, who faced child pornography charges in 2007 and was then convicted. Police used his internet address to access details from his provider, without first getting a search warrant. Lawyers argued that their actions breached his constitutional right to be protected from illegal search and seizure.

Spencer appealed his conviction, arguing that the search was unconstitutional and his rights had been violated. The Saskatchewan Court of Appeal ruled there is no reasonable expectation of privacy for basic internet subscriber information.

But on Friday the Supreme Court disagreed with that.

"In my view, in the totality of the circumstances of this case, there is a reasonable expectation of privacy in the subscriber information," Supreme Court Justice Thomas Cromwell wrote.

"The disclosure of this 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 warrantless search, such as the one that occurred in this case, is presumptively unreasonable," Justice Thomas Cromwell wrote for the court. "The Crown bears the burden of rebutting this presumption."

The court also acknowledged that the users should be allowed a degree of anonymity while on web: the court touched on constitutional issues in Section 8 of the Charter of Rights and Freedoms, which secures Canadians' privacy rights from unlawful search and seizure, the Canadian Press company reported.

The case comes on the backdrop of the viewing of the C-13 Protecting Canadians from Online Crime Act, or so-called ‘cyberbullying’ bill.

The project of the law is set to let law-enforcement gain access to computers and remotely track cellphone users’ movements and activities without any warrant, just using computer software.

Despite the bill introducing responsibility for sending nude photos, for instance, what the law chiefly does is greatly expand security forces’ authority, giving officers powers to remotely hack into computers, mobile devices or cars in order to track location or record metadata, director of the Canadian Civil Liberties Association Cara Zwibel told MPs a few days ago.

Some members of parliament agree with Zwibel, for instance, New Democrat MP Peter Julian called on the government to amend the bills in light of the latest ruling

"The Conservatives are steamrolling ahead with Bill C-13, which also allows unconstitutional spying on Canadians. With yet another bill struck down by the Supreme Court, when will they finally take a balanced approach that keeps Canadians secure without infringing on constitutional rights?" Julian said in the House of Commons, as quoted by the Canadian Press.

The bill is currently viewed in the House of Commons, and it’s unclear what the government’s next steps will be: either amending the bill before it clears the Commons, or doing so later in the Senate.

Privacy watchdog Daniel Therrien and the Canadian Bar Association recommended that the cyberbullying bill be divided in two, with one bill covering cyberbullying and another focusing on lawful-access provisions.

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