On the Internet, Nobody Knows You’re A …

Imagine this scenario:

It’s 3:00 am. Unable to sleep, you sit at the desktop computer in your living room and begin surfing the Internet. Out of a mixture of personal interest and plain curiosity, you explore a number of publicly accessible webpages, including that of a controversial religious leader, a sexual fetish discussion board, and a company that promises to help cure you of your various medical ailments.

After some time you become drowsy and determine its time to retire. As you turn away from your screen, you are shocked to see a local police officer sitting in the recliner across from you. He has been watching over your shoulder with a notepad in his hand, making meticulous notes of every Internet site you’ve visited.

How did this person get in your house you wonder? You didn’t invite him and you’re appalled to learn that he doesn’t have a warrant. What’s more, he tells you, he doesn’t need one…

R v Miles Wilson

The Facts

While the above scenario is fictional, it has taken a dramatic step forward to becoming a reality thanks to R v Miles Wilson (see here) [Miles Wilson], a recent Ontario trial court ruling applying R v Tessling, [2004] 3 SCR 432 [Tessling], and its predecessor R v Plantto the realm of household internet usage.

In Miles Wilson, the accused was charged with unlawfully possessing and unlawfully making available child pornography, following a police investigation. As part of the investigation, an officer had conducted what he called a “plain view search” of publicly accessible peer-to-peer websites on the internet. Using technology that is widely available online, the officer determined the numerical IP (Internet Protocol) address as well as the ISP (Internet Service Provider), in this case Bell Canada, of an individual allegedly involved with uploading and downloading child pornography.

Because neither piece of information could be attached to the individual’s name or street address, the officer then sent a letter to Bell Canada requesting disclosure of the account information attached to this otherwise anonymous IP address. Although the officer had not secured a warrant, Bell nonetheless opted to provide the officer with the requested information, which in this case referred to the accused’s wife.

Analysis

The fundamental issue before Leitch R.S.J. of the Superior Court of Justice was whether, in accessing the accused’s name and street address from Bell without first obtaining a warrant, police had infringed upon the accused’s reasonable expectation of privacy, contrary to s. 8 of the Charter. Remove the legalese and the issue in Wilson becomes far more dramatic: are Canadians free from unbridled state surveillance of their online activities while in the confines of their homes?

Despite the widely-held belief in the anonymity of internet usage, Leitch R.S.J. applied the troubling logic of both Plant and Tessling in order to determine that Canadians ought not to hold any expectation of privacy in the above regard.

It may be recalled that in Plant, a case concerned with privacy with regard to household electricity records, the Court determined that the s. 8 Charter guarantee against unreasonable search and seizure protects a “biographical core” of personal information. Using this vague threshold, the majority found that electricity consumption within the home is not protected because it reveals “very little about the personal lifestyle or private decisions of the occupant of the residence.”

Although she agreed with the outcome in Plant, McLachlin J. (as she was then), registered a deep concern that the “territorial” implications of the search had been eclipsed by Court’s focus on “informational” privacy. For despite not being facially as revealing as some other records, electricity records are undoubtedly capable of inferentially “tell[ing] a story about what is happening inside a private dwelling, the most private of places.”

With Tessling, the Court’s assault on the the level of privacy that Canadians may expect in relation to household activities gained further momentum. In approving the unauthorized use of plane-mounted infrared photography upon an accused’s home, not only did the Court cement the Plant majority’s formulation of a narrowly-defined “biographical core, but it adopted an atomistic interpretation of police information collection. According to Binnie J., despite the fact that the objective of the search was to determine what was going on inside the home, police had not really searched the home, but rather had conducted a search about it.

What is more, Binnie J. declared, the “heat profile” recorded by police was “on its own meaningless.” Of course, what Binnie J. did not care to explicitly note was that (in conjunction with the statements of informants) it was precisely this “meaningless” information that eventually secured a “valid” search warrant.

Conclusion

Returning to Miles Wilson, in Leitch R.S.J.’s decision, we find a disturbing coalescence of the above-noted decisions. First, in rejecting the accused’s s. 8 claim, Leitch R.S.J. determined that one’s name and address, or that of one’s spouse, falls beyond the inference-resistant “biographical core” threshold of Plant. Second, Letich R.S.J. found that given the fact that names and address are “information available to anyone in a public directory”, they are, in isolation, largely meaningless pieces of information as far as s. 8 is concerned.

Ultimately, Miles Wilson discloses an inattention to the profound social implications of providing police with an unregulated power to attach one’s identifying information with their IP address. The nexus of these two pieces of information provide police with the ability to access anyone and everyone’s online history without acquiring a search warrant. However creditable Leitch R.S.J.’s concern about the scourge of child pornography, her decision is yet another disheartening step toward the mass surveillance of household activities in Canada. While the ruling does not bode well for Mr. Wilson, even worse are its broader implications, which potentially represent an Orwellian nightmare for us all.