In the aftermath of the European Court of Justice “right to be forgotten” decision, many asked whether a similar ruling could arise in Canada. While a privacy-related ruling has yet to hit Canada, last week the Supreme Court of British Columbia relied in part on the decision in issuing an unprecedented order requiring Google to remove websites from its global index. The ruling in Equustek Solutions Inc. v. Jack is unusual since its reach extends far beyond Canada. Rather than ordering the company to remove certain links from the search results available through Google.ca, the order intentionally targets the entire database, requiring the company to ensure that no one, anywhere in the world, can see the search results. Note that this differs from the European right to be forgotten ruling, which is limited to Europe.
The implications are enormous since if a Canadian court has the power to limit access to information for the globe, presumably other courts would as well. While the court does not grapple with this possibility, what happens if a Russian court orders Google to remove gay and lesbian sites from its database? Or if Iran orders it remove Israeli sites from the database? The possibilities are endless since local rules of freedom of expression often differ from country to country. Yet the B.C. court adopts the view that it can issue an order with global effect. Its reasoning is very weak, concluding that:
the injunction would compel Google to take steps in California or the state in which its search engine is controlled, and would not therefore direct that steps be taken around the world. That the effect of the injunction could reach beyond one state is a separate issue.
Unfortunately, it does not engage effectively with this “separate issue.”
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In the fall of 2007, Public Safety Canada quietly launched a lawful access consultation that envisioned mandatory disclosure of customer name and address information. After I posted the consultation online, the department claimed that the consultation was not secret and then-Public Safety Minister Stockwell Day suggested that the document actually contained old Liberal wording. Day promised not introduce legislation compelling disclosure without a court order, a commitment that Peter Van Loan, the next Public Safety Minister, rejected when the Conservatives introduced their first lawful access bill in 2009.
This third post on Spencer (case summary, comparison with government talking points) begins with some lawful access history because it is important for understanding what might come in the aftermath of the Supreme Court of Canada’s evisceration of the government’s arguments on voluntary disclosure of personal information in the Spencer decision. The starting point for the voluntary disclosure provisions in Bills C-13 and S-4 can be traced back to the 2007 consultation. Law enforcement complained about inconsistent access to customer name and address information and sought new provisions to make such disclosure mandatory (PIPEDA permitted voluntary disclosure but did not require it).
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For weeks, the government has been claiming that the provisions in Bill C-13 and S-4 were compatible with the law. Last week, the Supreme Court of Canada disagreed, issuing its decision in Spencer on the legality of voluntary warrantless disclosure of subscriber information. The court ruled that there was a reasonable expectation of privacy with subscriber information and that voluntary disclosure to police may constitute an illegal search.
The court’s comments are particularly striking when contrasted with claims from government ministers, MPs, and officials, who have defended C-13 and S-4 at committee. Consider what the court said about subscriber information:
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 ISP voluntarily disclose such information amounts to a search.
In contrast, Bob Dechert, the Parliamentary Secretary to the Minister of Justice, argued at committee that subscriber information was similar to a licence plate on a car:
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For the past several months, many Canadians have been debating privacy reform, with the government moving forward on two bills: lawful access (C-13) and PIPEDA reform (S-4). One of the most troubling aspects of those bills has been the government’s effort to expand the scope of warrantless, voluntary disclosure of personal information.
Bill C-13 proposes to expand warrantless disclosure of subscriber information to law enforcement by including an immunity provision from any criminal or civil liability (including class action lawsuits) for companies that preserve personal information or disclose it without a warrant. Meanwhile, Bill S-4, proposes extending the ability to disclose subscriber information without a warrant from law enforcement to private sector organizations. The bill includes a provision that allows organizations to disclose personal information without consent (and without a court order) to any organization that is investigating a contractual breach or possible violation of any law. I appeared before both committees in recent weeks (C-13, S-4), but Conservative MPs and Senators were dismissive of the concerns associated with voluntary disclosures.
This morning another voice entered the discussion and completely changed the debate. The Supreme Court of Canada issued its long-awaited R. v. Spencer decision, which examined the legality of voluntary warrantless disclosure of basic subscriber information to law enforcement. In a unanimous decision written by (Harper appointee) Justice Thomas Cromwell, the court issued a strong endorsement of Internet privacy, emphasizing the privacy importance of subscriber information, the right to anonymity, and the need for police to obtain a warrant for subscriber information except in exigent circumstances or under a reasonable law.
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I talked to Rob Breakenridge on his show on News Talk 770 to about the Supreme Court of Canada’s landmark ruling in Spencer where it eviscerated voluntary disclosure of internet subscriber data.
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