David Butt is a criminal lawyer in Toronto, and counsel to the Kids Internet Safety Alliance, www.kinsa.net
Supreme Court of Canada decisions can create turbulence in their wake because they turn our legal system in a different direction. However, this turbulence is often exaggerated by punditry capitalizing on the media attention of the moment. The winners crow about a bold new course and the losers wail we are heading for the shoals. Once the experienced lawyers read the fine print, and figure out what is really going on, the turbulence dissipates quickly, and everyone adapts to life on a very similar course, which is typically altered pragmatically, by only a mere few degrees.
The Spencer case, which is all about police access to Internet subscriber information without a court order during a child pornography investigation, was released Friday by the Supreme Court. It fits comfortably into the pattern described above. There will be lots of preening and nay-saying, but the decision is quite pragmatic, even a bit dull. Here the five main points about what it means to you.
Police need a court order to get your subscriber information from your Internet service provider
The Supreme Court filled 59 paragraphs with head-hurting glop that only law nerds can love, to say your subscriber information – your name and address – is private, and the police need a court order to get it. That is the most significant result for most of us. Because if the police need a court order to get basic subscriber information, it is almost impossible to imagine anything else about your online activity that police can now obtain without a court order. The takeaway? Enhanced privacy protection online, unless you make your activities public.
In emergencies, no court order is required.
Think amber alerts, or cases where police turn up evidence of real time child abuse. (Don't kid yourself, it happens.) In emergencies, police can demand subscriber and other information responsibly related to the crisis.
A court order is easy to get in a typical child pornography case.
If there is a typical child pornography case, it is this. Police use a variety of investigative techniques to determine that a certain IP address (sort of like a phone number used to conduct Internet activity) has been used to traffick explicit images of child sexual abuse. The police must uncover the identity of the perpetrator using that IP address. Trafficking explicit child abuse images is obviously a serious crime against children, so getting a court order to disclose the subscriber behind the IP address will be easy.
The Spencer decision does not give child pornographers and other online crooks and predators a free pass. The only downside is more paperwork for the police. Cops will moan, and ISPs will have more court orders to process. Let's hope they don't drop the ball.
Other kinds of cases
The Spencer decision was all about child pornography cases. What about other cases? Same rules. A court order is now required for subscriber information in all police investigations, and the standards required of the police will be the same. Consistency is a virtue.
All the warrantless cases still pending will be fine.
The Spencer decision will not trigger a landslide of cases thrown out of court. For years the police have been getting subscriber information without a court order while this issue wound its way to the Supreme Court. Many such cases are now pending across the country. Don't worry, said the Supreme Court. Many lower courts before today saw nothing wrong with the practice of asking for subscriber information without a court order, so if the police relied in good faith on what the lower courts said, those earlier prosecutions can continue. Only future cases will be affected by the new court order requirement, so the transition to the new standard will be smooth. This was very bad news for Mr. Spencer himself. Police got his name without a court order, he fought all the way to the Supreme Court and succeeded in changing the law. But he remains a convicted child pornography possessor none the less. Classic Canadian compromise.
This case will not disrupt our course. People will continue to enjoy lawful Internet usage free from irresponsible state interference. Police and ISPs will adapt to new court order requirements. And online criminals will continue to be apprehended at the same inadequate rate that is a function of the inadequate resources available for online law enforcement.