The Supreme Court of Canada's ruling in R. v. Spencer sets an amazing precedent for privacy that not only reforms the worst practices of Canadian ISPs and telcos; it also annihilates the Tories' plans to weaken Canadian privacy law into insignificance. The Supremes unanimously held that the longstanding practice of carriers voluntarily handing over subscriber data to cops and government agencies without a warrant was unconstitutional.
The court's decision, written by Harper appointed Justice Thomas Cromwell, takes a nuanced view of privacy, and upholds the importance of anonymity as part of the protected right to privacy.
The Harper government is currently pushing two surveillance bills, C-13 and S-4, which would radically expand the practice of "voluntary" disclosure of subscriber data without a warrant. As Michael Geist writes in an excellent explainer, these bills are almost certainly unconstitutional under this ruling and are likely to die or be substantially reformed.
There are several important implications that flow from this decision. First, with a finding that police need a warrant for subscriber information (except in exigent circumstances), the practice of obtaining information on a voluntary basis should come to an end.
Second, the government's plans for expanded voluntary, warrantless disclosure under Bill C-13 must surely be reformed as it is unconstitutional. Just yesterday, Conservative MP Bob Dechert relied on R. v. Ward to support the C-13 approach with respect to immunity for voluntary disclosure. The court has effectively rejected the Ward decision and Dechert's defence of the provision no longer stands.
Third, the government should remove the expansion of voluntary disclosure in S-4. With the Supreme Court emphasizing the privacy importance of subscriber information, the government should not be seeking to expand warrantless disclosures. In fact, immediate reports indicate that the Senate has delayed debate on the bill to consider the ruling.
Fourth, Internet providers need radical reform of their current approach to disclosure of subscriber information. The Supreme Court examined Shaw's terms of service policy and found it provided "a confusing and unclear picture of what Shaw would do when faced with a police request for subscriber information." The same can be said for virtually every ISP in Canada. While ISPs have been regularly disclosing this information hundreds of thousands of times, the Court ruled:
Given that the purpose of PIPEDA is to establish rules governing, among other things, disclosure “of personal information in a manner that recognizes the right of privacy of individuals with respect to their personal information” (s. 3), it would be reasonable for an Internet user to expect that a simple request by police would not trigger an obligation to disclose personal information or defeat PIPEDA’s general prohibition on the disclosure of personal information without consent.
(Supreme Court of Canada, Peregrine981/Wikimedia Commons, Public Domain)