special report
8 Obiter Dicta
R v Spencer
On the Internet, User Anonymity Remains Supreme
T
michael capitano › news editor
he internet is our generation’s
playground, our social hub. We
go there to play and chat, learn
and explore. We often assume
that we’re safe there, that we can do what
we want without consequence, that our
activities are not being monitored. We
rarely take time to consider the digital
trail we leave behind. Even if internet
companies collect our data for all sorts
of reasons (or even generate their own
through secret experiments), we assume
that our data stops there and is identityfree. We believe that the internet is a bastion of privacy. Thankfully, the Supreme
Court of Canada agrees.
the defendant’s constitutional rights under section
eight of the Charter. In the case, the police obtained
the IP address of a computer that had been used to
commit crimes. They then requested that the linked
ISP provide them with the internet subscriber data
in order to identify the owner. The police relied on
the Personal Information Protection and Electronic
Documents Act (PIPEDA) as grounds for having
lawful authority for such requests and disclosure.
Based on that information, they obtained a warrant to
search the defendant’s home and seize his computer,
on which incriminating evidence was found.
The defence argued that such evidence should
be excluded at trial because the internet subscriber
data was obtained by an unlawful search. The Court
agreed. Justice Cromwell, author of the unanimous
opinion, made clear the importance of informational
privacy, and how
the privacy interests of secrecy,
control, and anony m it y ju st i f y
constitutional
protection, regardless of whether it shelters legal or
illegal activity. He writes:
On June 13, 2014, the Court released their decision in
R v Spencer, upholding the general right to privacy
on the internet. The case turned on whether a request
by a police officer to an ISP for internet subscriber
data constituted an unreasonable search, violating
In my view, in the totality of the circumstances
of this case, there is a reasonable expectation of
privacy in the subscriber information. 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 request by a police officer that an
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Based on the Court’s reading of PIPEDA, the police
lacked lawful authority to conduct such a search.
Without exigent circumstances or a reasonable law,
the searches and subsequent seizure of the defendant’s property were ruled unlawful. For more
details, many great summaries, and the case itself,
look online.
In general, the decision leaves us with the understanding that internet users can reasonably expect
that their anonymously undertaken internet activities will remain confidential, and that their information will not be disclosed to police without a warrant.
It is important to note, however, that this reasonable exp