Warrantless access to ISP user data
p2pnet news view Freedom | P2P:- Increasing use of ‘we will disclose’ language in ISP contracts, “tilts the balance of privacy away from individuals toward the police, without the ability of the Courts to impartially consider what is reasonable in the circumstances”.
So says Canadian privacy lawyer David T.S. Fraser (right) on his Canadian Privacy Law Blog, quoting justice Leslie Pringle in Bell. R. v. Cuttell.
The case isn’t yet on CanLii (with free access to online Canadian full-text court decisions), but Fraser has posted a copy online.
In it, justice Pringle stresses it appears that »»»
[...] Bell, Telus, Rogers and Shaw all have contracts requiring that their subscribers agree to disclosure of subscriber information in certain situations, suggesting that the continuing expectation of privacy may be unreasonable in light of some contracts. Therefore, it may be that in most cases, the issue of whether there is a reasonable expectation of privacy describer information will be resolved by the contract between the parties.
Unfortunately, this means that in cases where the contract decides the issue, any debate about obtaining subscriber information to access very personal information by law enforcement will have moved beyond the reach of the courts, at the least prior to any intrusion taking place.
It means that the police would be the ones to decide if there are grounds to believe that crime has been committed before making a request, and it will be left to ISPs could decide if they wish to comply with this request subscriber information,” Judge writes, adding:
In short, it means that the safeguard of an independent judicial arbiter will no longer be available to assess, in advance, whether the individual’s right to privacy should give way to the law-enforcement goals of the state.”
Explains Fraser »»»
The Court concluded there is a reasonable expectation of privacy in your account records, but this expectation can be destroyed by your ISP if their service agreement grants them wide latitude to hand over customer information. The judge accepts that a broadly-worded statement in Bell’s contract with the customer might supplant the reasonable expectation of privacy. (I would also question whether a form contract that the customer likey has not read would be enough to mean that subjectively there is no reasonable expectation of privacy.)
In this case, there was no proof brought by the police that the Bell contract applied to this customer so a Charter breach was found.
The Court importantly notes that PIPEDA does not give the police the right to seek information and rejects every crown argument that the police may have had “lawful authority” in the circumstances.
But, in the end, the records were admissible as the police acted in good faith.
Stay tuned.
(Cheers, RW)
Canadian Privacy Law Blog – New decision on warrantless access to ISP customer data, October 8, 2009
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October 9th, 2009 at 3:00 pm
I’m glad I’m on TekSavvy, at least they don’t roll over easily.
Now, how do we get the masses paranoid about this so they’ll do something about it and Bell/Telus/Rogers/Shaw will change their minds?
How do we get them to perform a mass exodus from Bell/Telus/Rogers/Shaw provided internet services to the remaining 4% market share providers?
Sheep only act when scared, so how do we do it?
October 9th, 2009 at 4:06 pm
@Robert
TekSavvy uses the exact and VERY SAME AUP as Bell.
Also, in the recnet UBB filing, Bell filed this AUP with the CRTC this week.
Bell forces this AUP upon TekSavvy and all of its’ wholesalers.
So umm…. you were saying?
October 9th, 2009 at 4:49 pm
The way we do this is by writing our ISPs directly, and demanding to know what their policies are with respect to disclosing information ot police. Then we post the responses. Despite there being some vague reference hidden deep in a contract somewhere, the reality is no one knows this is going on. And it’s not all ISPs … but no one really knows which ones.
October 9th, 2009 at 5:34 pm
@Anon
Any Bell wholesaler is bound by Bell’s AUP and what you read in the story above. It’s even filed with the CRTC and your Bell wholesalers likely references this.
In addition, all the wholesalers have AUP and policies on their website, one need not bother them, but rather you can read it yourself.
If you are with a Bell wholesaler and they don’t have Bell’s AUP word for word as a policy, then that Bell wholesaler is hiding the truth.
End of story on that.