The Canadian Privacy Law Blog: Developments in privacy law and writings of a Canadian privacy lawyer, containing information related to the Personal Information Protection and Electronic Documents Act (aka PIPEDA) and other Canadian and international laws.

On Twitter

About this page and the author

The author of this blog, David T.S. Fraser, is a Canadian privacy lawyer who practices with the firm of McInnes Cooper. He is the author of the Physicians' Privacy Manual. He has a national and international practice advising corporations and individuals on matters related to Canadian privacy laws.

For full contact information and a brief bio, please see David's profile.

Please note that I am only able to provide legal advice to clients. I am not able to provide free legal advice. Any unsolicited information sent to David Fraser cannot be considered to be solicitor-client privileged.

Privacy Calendar

Links

RSS FEED for this site

Blogs I Follow

Small Print

The views expressed herein are solely the author's and should not be attributed to his employer or clients. Any postings on legal issues are provided as a public service, and do not constitute solicitation or provision of legal advice. The author makes no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained herein or linked to. Nothing herein should be used as a substitute for the advice of competent counsel.

This web site is presented for informational purposes only. These materials do not constitute legal advice and do not create a solicitor-client relationship between you and David T.S. Fraser. If you are seeking specific advice related to Canadian privacy law or PIPEDA, contact the author, David T.S. Fraser.

Wednesday, September 24, 2008

More from Ontario courts on warrantless ISP disclosures

This recent case was brought to my attention today: R. v. Ward, 2008 ONCJ 355 (CanLII). The decision is a ruling on a charter motion on whether evidence in a child pornography investigation should be admissible after the police obtained the identity of an internet user from an ISP without a warrant. Acting on a pretty solid tip from Germany, police identified three IP addresses that were associated with dealing with child pornography. Instead of getting a warrant, the police when to the ISP, Bell Sympatico, and got the name and address of the subscriber associated with the IP address. (I have no doubt that the tip would be enough to get a warrant.)

Justice Lalande distinguished this case from R. v. Kwok, by pointing out that the user agreement with Bell Sympatico reduces if not destroys any reasonable expecation of privacy that the user may have. In order for a warrantless search to be reasonable, there has to be no reasonable expecation of privacy.

Some may recall the hubbub in 2006 when Bell Sympatico changed its terms of use, which many thought was a harbinger of the revival of lawful access. The ISP denied it and Bell media relations types said they’d only hand over customer information with “court ordered warrants” though the terms of use purport to permit disclosure “upon request” from a government.

In this case, the conclusion seems to be that the customer has an expectation of privacy in their name and address unless the ISP has actively taken steps to remove it. Interesting.

For a flashback to 2006, check out

Labels: ip address, law enforcement, lawful access, lawful authority, privacy, warrants