SCC “gets” Tech – Government Not So Much

Far too often – at least in my opinion – courts and legislators don’t seem to understand technology related issues or how the law should fit with them. The Supreme Court of Canada, however, got it right with Spencer, which basically says that internet users have a reasonable expectation of anonymity in their online activities. Last Fall the SCC sent a similar message in the Vu case saying that a general search warrant for a home was not sufficient to search a computer found there. And that trend will hopefully continue with its upcoming Fearon decision on the ability to search cell phones incident to arrest.

While the SCC seems to now “get it” when it comes to privacy and technology, the federal legislature doesn’t seem to. It has continually tried to erode privacy with a series of “lawful access” attempts, the latest of which may be unconstitutional given the Spencer decision. Another example of the federal legislature not “getting it” is the CASL anti-spam legislation, which imposes huge burdens on normal businesses and software providers.

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Comments

  1. I read Spencer as saying that the present law does not authorize telecoms or other intermediaries to turn over subscriber information based on a mere request from the police – nether the law governing police investigations nor PIPEDA’s disclosure rules.

    But if those laws were changed to expressly permit disclosure of this information on the mere request, on what does the constitutional argument rely? Presumably on the nature of the request, however ‘mere’, as a search to which s. 8 of the Charter applies.

    In that case, is it acceptable under s. 8 to lower the burden on the police in getting judicial authorization, to ‘suspicion’ rather than ‘reasonable grounds’ for belief that information or evidence is available at the place or from the person with respect to which/whom the warrant is sought?

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