The Standing Senate Committee on Legal and Constitutional Affairs began its hearings on Bill C-13, the lawful access/cyberbullying bill last week with an appearance from several law enforcement representatives. The Ontario Provincial Police was part of the law enforcement panel and was asked by Senator Tom McInnis, a Conservative Senator from Nova Scotia, about what other laws are needed to address cyberbullying. Scott Naylor of the OPP responded (official transcript not yet posted online):
If the bag was open and I could do anything, the biggest problem that I see in the world of child sexual exploitation is anonymity on the Internet. When we get our driver’s licence we’re required to get our picture taken for identification. When you get a mortgage you have to sign and provide identification. When you sign up for the Internet, there is absolutely no requirement for any kind of non-anonymity qualifier. There are a lot of people who are hiding behind the Internet to do all kinds of crime, including cybercrime, fraud, sexual exploitation and things along those lines.
The Internet is moving so quickly that law enforcement cannot keep up. If there were one thing that I would ask for discussion on is that there has to be some mechanism of accountability for you to sign on to an Internet account that makes it like a digital fingerprint that identifies it to you sitting behind the computer or something at that time. There are mechanisms to do it, but the Internet is so big and so vast at this point, and it’s worldwide, I’m not sure how that could happen, but that would certainly assist everybody. In that way I can make a digital qualification that that’s the person that I’m talking to. If I had one choice, that’s what I would ask for.
Naylor’s comment was approved by Senator McInnis, who stated that he “absolutely agreed” with the recommendation.
Leaving aside the deeply troubling inference of requiring licences to the use the Internet in the same manner as obtaining a driver’s licence, the police desire to stop online anonymity suggests that the OPP has not read the Supreme Court of Canada Spencer decision very carefully. If it had, it would know that not only does the court endorse a reasonable expectation of privacy in subscriber information, but it emphasizes the importance of online anonymity in doing so. Justice Cromwell, speaking for unanimous court:
There is also a third conception of informational privacy that is particularly important in the context of Internet usage. This is the understanding of privacy as anonymity. In my view, the concept of privacy potentially protected by s. 8 must include this understanding of privacy.
The notion of privacy as anonymity is not novel. 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.
Consider situations in which the police want to obtain the list of names that correspond to the identification numbers on individual survey results or the defence in a criminal case wants to obtain the identity of the informant who has provided information that has been disclosed to the defence. The privacy interest at stake in these examples is not simply the individual’s name, but the link between the identified individual and the personal information provided anonymously. As the intervener the Canadian Civil Liberties Association urged in its submissions, “maintaining anonymity can be integral to ensuring privacy.”
Recognizing that anonymity is one conception of informational privacy seems to me to be particularly important in the context of Internet usage. One form of anonymity, as Westin explained, is what is claimed by an individual who wants to present ideas publicly but does not want to be identified as their author. Here, Westin, publishing in 1970, anticipates precisely one of the defining characteristics of some types of Internet communication. The communication may be accessible to millions of people but it is not identified with its author.
The recognition of anonymity as a particularly important component of Internet privacy will not come as a surprise to millions of Internet users to rely upon it to varying degrees to exercise free speech right and to preserve their privacy. It lies at the heart of posts from abuse victims, whistleblowers, and people who cannot otherwise speak out for fear of a backlash. What is surprising – or at least discouraging – is that the OPP and a Canadian Senator would seemingly jump at the chance to bring it to an end.