If you could change or enact one Internet law, what would it be? For some Canadians, it might be new rules to promote greater competition among Internet providers or increased copyright flexibilities matching the U.S. fair use provision. For others, it would mean toughening online privacy protection or examining whether Canadian net neutrality rules are sufficient.
When Scott Naylor, a detective inspector with the Ontario Provincial Police was asked the question during a Senate hearing earlier this month on the government’s lawful access legislation, he responded that he would eliminate anonymity on the Internet. Naylor likened Internet access to obtaining a driver’s licence or a marriage licence, noting that we provide identification for many different activities, yet there is no requirement to identify yourself (or be identified) when using the Internet.
While acknowledging that a universal identification system is impractical, he said would ideally like a mandatory digital fingerprint for Internet users that would identify them sitting behind the computer. Naylor’s comments were quickly greeted with support from Conservative Senator Tom McInnis, who lamented the use of assumed names and agreed that identifying the identity of online users would be a good thing.
Law enforcement support for the elimination or erosion of online anonymity is particularly ironic since the Supreme Court of Canada just emphasized its importance in a landmark ruling on Internet privacy. The Spencer decision is best known for affirming that Internet users have a reasonable expectation of privacy in their subscriber information.
The implications of that ruling are that law enforcement officials now have little choice but to obtain a court order to obtain subscriber information from Internet providers. Moreover, Internet providers who were previously willing to voluntarily disclose basic subscriber information without court oversight have abandoned the practice.
While the decision altered the landscape of Internet privacy, it is important to recognize that the court pointed to online anonymity as particularly important in the context of Internet use. In fact, it identifies precisely the kinds of cases of importance to law enforcement as the reason to preserve online anonymity.
For example, it notes that there may be situations where police want the list of names that correspond to identification numbers on a survey. In such situations, “the privacy interest at stake…is not simply the individual’s name, but the link between the identified individual and the personal information provided anonymously.”
Anonymity can create a challenge for law enforcement (though one that is frequently surmountable through digital detective work), but it also plays an important positive role for the police. Anonymous tip lines or information from anonymous individuals are frequently an important source of information for investigators. Eliminating anonymity would run the risk of hampering age-old investigative techniques.
The importance of online anonymity extends far beyond law enforcement, however. Corporate whistleblowers, women in abusive relationships, visible minorities, and a myriad of other people are emboldened by anonymity to speak out in a manner that would otherwise be unavailable if they were forced to identify themselves.
The Supreme Court’s 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 rights and to preserve their privacy. 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.
Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can be reached at firstname.lastname@example.org or online at www.michaelgeist.ca.