The Ontario Court of Appeal has released its decisions in R. v. Cuttell and R. v. Ward, key cases concerning the scope of police authority to unmask normally anonymous internet content by linking an IP address to a name and address. CCLA had intervened in both cases to argue that Canadians have a reasonable expectation of privacy in their anonymous internet activity and that the Charter generally required police to obtain a warrant before accessing private subscriber information held by an Internet Service Provider.
An individual’s activities on the Internet can reveal highly personal and intimate information about them, providing considerable insight into the user’s interests, habits, predilections and, by implication, their very thoughts. Gaining access to otherwise private subscriber information pierces the anonymity that is usually supplied by an IP address. This step is the key to gaining access to a vast repository of highly personal information regarding an individual’s online activity. Section 8 of the Charteraffords individuals the right to be free from unreasonable search and seizure. CCLA argued that, in order for the police to gain access to the subscriber information behind an IP address, absent exigent circumstances, they are constitutionally required to request a warrant before obtaining this private information.
The Court found that, on the evidence presented in and circumstances surrounding this case, there was no reasonable expectation of privacy in the customer information that was disclosed and that therefore no warrant was required. Nevertheless, the decision sets out a number of key principles that highlight the importance of privacy and anonymity on the internet. It also makes clear that it does not foreclose the possibility that a warrant may be required under different circumstances, or a different evidentiary record.
The CCLA remains concerned about the implications of permitting police to warrantless unmask anonymous internet activity, and will continue to advocate for stronger protections in this area of the law.
Read CCLA’s submissions to the Ontario Court of Appeal here.
Read the Ontario Court of Appeal’s judgment in Ward here.
