A crucial win for online privacy rights

OTTAWA — The chance that Canadians will end up with reasonable privacy laws for the Internet era improved dramatically on Friday when the Supreme Court of Canada ruled that police cannot get subscriber information from Internet service providers without a warrant.

The ruling shreds the reasoning behind the Conservatives’ Bill C-13 — which would allow warrantless access to your Internet account — putting pressure on the government to finally do the right thing after it twice tried to bring in Internet laws that would violate Canadians’ privacy.

Nobody who watched the Tories’ recent self-defeating showdown with the top court can confidently predict that they will be rational now, but if they are, they will go back to the drawing board and come up with a law that does not allow police to get personal information without a warrant.

This will be somewhat humiliating for the Prime Minister’s Office, since it is the second time that this government has tried to bring in a law that would give police the power to pierce your privacy. In February 2012, then-public safety minister Vic Toews introduced a “lawful access” bill, which would have required communications companies to hand over personal information to police without warrants.

When his Liberal critic quizzed him about this in the House of Commons, Toews said he “can either stand with us or with the child pornographers,” which was really, really stupid, since it was so outrageous that it made people pay attention to a bill the government wanted to quietly pass.

Privacy advocates — including some Tory backbenchers — kicked up a fuss and the government wisely retreated, killing the bill in February 2013.

In November 2013, Justice Minister Peter MacKay tabled C-13, which did not require communications providers to hand personal information to police, but protected them from liability when they did so, which, in practical terms, would have the same effect.

MacKay didn’t stand in the House and accuse his critics of standing with child pornographers, but the government did present the bill as being designed to prevent cyberbullying, offering grave and effective messaging linking it to recent tragic deaths of young people. Most of the bill had nothing to do with that, though, and appears to have been designed to give the police what they were looking for: the ability to get your IP address without a warrant.

Because of the government’s misdirection, it took quite a while for the debate to get to the meat of the bill, but when it did, the Tories found themselves making not-very-persuasive arguments.

In May, the government’s story line was strained by the testimony of Carol Todd, the mother of Amanda Todd, who took her life in 2012 after being sexually exploited by online predators. At a parliamentary committee, Todd backed the provisions of the bill that would target cyberbullying, but objected to the rest of the legislation. Todd joined privacy advocates and opposition critics who had called on the government to split the bill, which would have allowed Parliament to quickly take action on cyberbullying while giving more time to the knottier problems of online privacy.

The government declined. MacKay wanted to pass C-13 before the House rises for the summer, but after the court ruled on Friday, he signalled that the government will pause for reflection.

“We’ve been clear all along that any disclosure of information will be done in accordance with the law,” he said. “This morning, the (court)’s decision has clarified the law in this area. We will review this decision and respect the ruling.”

The problem for MacKay is that the court ripped away the fig leaf that allowed the government to argue that the law was constitutional. Section 8 of the Canadian Charter of Rights and Freedoms says that “everyone has the right to be secure against unreasonable search or seizure.” Lower courts had ruled that police could get their hands on your IP address without violating that charter right.

In debates about Bill C-13, Conservative MPs repeatedly pointed at an Ontario Court of Appeal ruling that found that Internet users didn’t have a reasonable expectation of privacy. But on Friday, the Supreme Court unanimously ruled otherwise, because your IP address can be used to track your online movements.

“The disclosure of this information will often amount to the identification of a user with intimate or sensitive activities being carried out online, usually on the understanding that these activities would be anonymous, ”wrote Justice Thomas Cromwell.

So the government’s argument is now dead. If MacKay really intends to respect the decision, he needs to scrap C-13 (and S-4, which allows communications firms to share your IP address with other firms) and draft bills that forbid warrantless IP address disclosures.

Police can’t open your mail or tap your phone without convincing a judge that it’s necessary. The Tories have twice tried to make different rules for the Internet era, but the judges, thankfully, don’t look like they’re going to let that happen.