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UOIT faculty member’s research on anonymity and privacy cited in Supreme Court of Canada decision

Dr. Andrea Slane, Associate Professor, Faculty of Social Science and Humanities, UOIT.
Dr. Andrea Slane, Associate Professor, Faculty of Social Science and Humanities, UOIT.

If you want to know anything about privacy and technology law in Canada, turn to one of the country’s leading authorities: Dr. Andrea Slane, Associate Professor in the University of Ontario Institute of Technology’s (UOIT) Faculty of Social Science and Humanities. In the last several years Dr. Slane has conducted policy research and published articles on how personal information is shared between private enterprises and law enforcement, and whether that sharing is constitutional.

Recently, one of Dr. Slane’s papers, co-written with Dr. Lisa Austin, Associate Professor, Centre for Innovation and Policy, University of Toronto, helped the Supreme Court of Canada (SCC) come to a decision in a case involving a search in connection to a child pornography offence. Police had identified the Internet Protocol (IP) address of a computer that had been used to access and store child porn through an Internet file-sharing program, and then obtained  the subscriber information associated with the IP address through the voluntary co-operation of the Internet Service Provider (ISP) - that is, without prior judicial authorization. This led investigators to the accused, who was eventually charged and convicted at trial of possession of child pornography. The accused appealed the conviction because of the way the evidence had been obtained – without a warrant.

In the SCC ruling, Justice Thomas Cromwell discussed the nature of information privacy, particularly the privacy expectations people have when they conduct activities anonymously on the Internet. He referred to Dr. Slane’s and Dr. Austin’s article, What’s in a Name? Privacy and Citizenship in the Voluntary Disclosure of Subscriber Information in Online Child Exploitation Investigations, published in Criminal Law Quarterly in September 2011.

"The notion of privacy as anonymity is not novel,” Justice Cromwell wrote. “It appears in a wide array of contexts ranging from anonymous surveys to the protection of police informant identities. A person responding to a survey readily agrees to provide what may well be highly personal information. A police informant provides information about the commission of a crime. The information itself is not private — it is communicated precisely so that it will be communicated to others. But the information is communicated on the basis that it will not be identified with the person providing it."

In this case, the main dispute was whether the accused’s expectation of privacy was reasonable, because the activities were conducted anonymously. If so, police generally require a warrant to breach that reasonable expectation of privacy.

Citing Dr. Slane’s and Dr. Austin’s article, Justice Cromwell wrote, "Anonymity permits individuals to act in public places but to preserve freedom from identification and surveillance….The user cannot fully control or even necessarily be aware of who may observe a pattern of online activity, but by remaining anonymous — by guarding the link between the information and the identity of the person to whom it relates — the user can in large measure be assured that the activity remains private."

In the end, the appeal was dismissed and the judge ruled that, despite the accused’s expectation of anonymity, the admission of evidence should be upheld.

“The police were acting in good faith that they did not need a warrant under those circumstances, since many courts had ruled that that was the case,” Dr. Slane explained. “There is no doubt that police would have been able to get a warrant here; they just didn't, since they didn't think they had to."

Moving forward, police will now need a warrant to obtain subscriber information linked to an IP address from a telecommunications service provider, even where a serious offence like child pornography is at issue.

“A person’s anonymity online from here on out can only be unmasked by a service provider when police have a warrant,” Dr. Slane added. “In order to obtain a warrant, police need to demonstrate to a judge or justice of the peace that they have reasonable grounds to believe that an offence has been committed and that evidence of that offence will be found at the place, thing, or information being searched."