Don’t Get Too Cocky, Canada

Recently, in discussing the proposed bill before Congress to require ISP and wifi providers to keep records of all user access, several commenters made smug “not in Canada” comments.

I didn’t have time to mention it then, but this is not the case, as an Ontario Superior Court judge recently ruled that no warrant is necessary for police to demand access to ISP records. Of course, the ruling is going to be appealed (and let me tell you right now this one will go all the way to the Supreme Court – major new interpretative decisions of how far police search powers extend are always heard by the Supreme Court), but as it stands, in Ontario right now police do not need a warrant to demand access to record logs. (Of course, we haven’t yet crafted a law demanding that ISPs maintain logs, so for the time being we are one up on you there.)

It’s actually a very interesting issue from a legal perspective, because the cases for and against are fairly obvious. The case for this decision, to my mind, is fairly simple: you can’t demand privacy where privacy doesn’t technically exist. The idea that an IP can constitute anonymity (as advanced by James Stribopoulos, who is my boss over at The Court and one of the leading voices on privacy law issues in Canada) only exists in the mind of the general public, who don’t know how well or easily you can be tracked via your IP. Without specific legislation making it illegal to interrupt or monitor cell phone communications, for example, there would be no reason that the police couldn’t follow cell conversations via tracking the airwaves, because the airwaves aren’t private. In this interpretation, privacy via IP is a fraud and therefore the public should not be allowed to argue for it.

Of course, the argument against this is that from a normative standpoint, we expect that our IPs constitute anonymity, and therefore the law should act accordingly so, even though this really isn’t the case. Normative public expectation has a mixed record in Canadian legal decisionmaking, though. After all, I think most people would agree that they have a right to privacy against search while in their significant other’s apartment when said significant other has given them a key – but according to R. v. Edwards, you don’t have that right to privacy, because your right to refuse entry into a private domicile is predicated on ownership and other elements of property law. (Which is very fine parsing, or, to put it another way, kind of bullshit. But that’s the law for you.)

It’s going to be an interesting – and important – set of appeals on this one, and the die is far from cast. So don’t go celebrating how awesome this country is re: privacy rights. Because, well. Not so much.