Safeguarding Online Anonymity: R v Spencer Revisited

Last month, senior contributing editor Jordan Casey analyzed R v Spencer, 2014 SCC 43, a case that clarifies the Supreme Court of Canada’s (“SCC”) position on what constitutes a reasonable expectation of privacy in the digital age. This post further explores one of the themes touched on by Jordan – the nature and significance of the privacy interest associated with online anonymity.

To review, the case involves the possession and dissemination of child pornography. The SCC upheld a Saskatchewan Court of Appeal decision finding the defendant, Matthew David Spencer, guilty of possessing child pornography. The SCC also concurred in setting aside the defendant’s acquittal at trial for a separate count of “making available” child pornography. However, in coming to the same conclusion as the appeals court, the SCC followed a different line of reasoning, one that offers a more expansive understanding of the right to privacy of Internet users.

An Unconstitutional Search

The issue at the heart of the case is whether police action to obtain information associated with the defendant’s IP address constituted an unconstitutional search. Writing for the majority, Justice Cromwell found that, without having obtained prior judicial authorization (para 11), police lacked the “lawful authority” (para 73) to compel the defendant’s Internet Service Provider to disclose subscriber information. (Such information allowed the police to link the accused’s online activity to a specific address.) In the absence of an applicable statute grounding the (warrantless) search, the SCC found that it engaged the defendant’s section 8 rights.

This conclusion was obtained by considering both the subject matter of the search and the nature of the privacy interest it compromised. As Jordan pointed out in her earlier post, the SCC took the broad view that the true object of the search was “not simply a name and address of an individual in a contractual relationship with Shaw,” but rather the intimate biographical and “lifestyle” details that may be inferred from a user’s Internet habits.

Assessing Online Anonymity

In assessing the precise nature of the privacy interest engaged by the search, the SCC outlines three broad analytical categories: territorial privacy, personal privacy, and informational privacy. The present case clearly falls into the latter category, which the court further subdivides into “three conceptually distinct although overlapping understandings of what privacy is” — that is, “privacy as secrecy, privacy as control and privacy as anonymity” (para 38).

The latter category again serves as the basis for the SCC’s reasoning. Justice Cromwell points to several instances in which the privacy interest at stake relates to anonymity — for example, in anonymous surveys or the use of police informants (para 41). He also cites R v Wise, [1992] 1 SCR 527,  in which “the ubiquitous monitoring of a vehicle’s whereabouts on public highways amounted to a violation of the suspect’s reasonable expectation of privacy” (para 43).

However, the SCC notes that anonymity is “particularly important in the context of Internet usage” (para 45), since many online transactions — from anonymous blog posts and comments to the slew of metadata compiled by advertisers and search engines — depend on “guarding the link between the information and the identity of the person to whom it relates” (para 46) as the only means of guaranteeing privacy. Thus, Justice Cromwell concludes that “anonymity may, depending on the totality of the circumstances, be the foundation of a privacy interest that engages constitutional protection against unreasonable search and seizure” (para 48). Justice Cromwell further notes that “anonymity is an important safeguard for privacy interests online” (para 78) and that violating such anonymity can seriously heighten the impact of Charter-infringing conduct.

Ultimately, in applying the test set out in R v Grant, [2009] 2 SCR 353, relating to section 24(2) of the Charter, the SCC decided not to exclude the evidence obtained in breach of the defendant’s section 8 rights, since doing so would bring the administration of justice into disrepute (paras 75-81). However, the decision arguably carves out new grounds for protecting the right to privacy of anonymous Internet users.

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