Tuesday, March 17, 2009

Geist on privacy rights buried in the fine print

Michael Geist's most recent Toronto Star Column addresses the fine print in ISP customer agreements that purport to permit the ISP to hand customer names and addresses to the police without a warrant.

Read Michael's column:

Michael Geist - Canadian Privacy Rights Buried in the Fine Print

Appeared in the Toronto Star on March 16, 2009 as Canadian Privacy Rights Buried in the Fine Print

Scott McNealy, the former CEO of Sun Microsystems, has achieved considerable notoriety for having warned Internet users ten years ago that "you have no privacy, get over it." Recent headlines suggest that the Ontario courts have adopted those sentiments, as two recent decisions involving the disclosure of subscriber information by Internet service providers confirmed that revealing personal information to law enforcement without a warrant is permitted under Canadian privacy law.

While some view these cases as providing conclusive evidence that Canadians enjoy little privacy in identifying data such as customer name and address information, a closer look at the decisions and industry practices reveal that the issue is not entirely settled.

Both recent decisions involved disclosures of customer name and address information in suspected child pornography cases. In one case, R. v. Wilson, the court ruled that the data was not particularly sensitive and that the customer had no reasonable expectation of privacy. Moreover, the customer had agreed to Bell Canada’s Privacy Policy that permits the disclosure of personal information in certain circumstances.

In the second case, R. v. Vasic, the court arrived at a different conclusion on the sensitivity of the data. It ruled that combining customer name and address information with IP address data could render the information sensitive. Nevertheless, it upheld the disclosure of the information without a warrant, since the customer had consented to the Rogers Acceptable Use Policy, which warns of possible disclosure to law enforcement without a court order.

These decisions place the spotlight on the fact that customer privacy on the Internet is not guaranteed by national privacy law. Rather, the law actually leaves the disclosure decision in the hands of the organization that has collected the information, which can choose whether to turn over personal information in certain circumstances without a warrant.

Moreover, most Internet-focused organizations such as ISPs have drafted user agreements in which their customers have consented to such disclosure policies. These cases confirm that courts will typically enforce user agreements regardless of whether subscribers have taken the time to read them.

While most companies are reluctant to publicize their disclosure practices, according to government documents recently obtained under the Access to Information Act, the RCMP estimates that 30 percent of Canadian organizations do not reveal personal information to law enforcement without a warrant.

The RCMP estimates did not include specific data on ISPs, but their estimates are borne out by current practices. Bell and Rogers chose to reveal customer information in the Wilson and Vasic cases, however, not all Canadian ISPs would have followed suit. For example, in Atlantic Canada, Bell Aliant requires law enforcement to obtain a warrant in an all non-emergency situations.

The disclosure issue is not limited to ISPs. Similar questions arose last year when the Canadian Internet Registration Authority crafted its whois policy, which governs public access to domain name registrant information. CIRA initially adopted a position that would have required a warrant for all access to such personal information, but intense pressure from the RCMP and Industry Canada led to an exception for law enforcement access without court oversight.

Few Canadians will have any sympathy for the privacy rights of those facing child pornography allegations. Yet these cases provide an important reminder about the limits of Canadian privacy law, which invariably leaves privacy subject to policies that subscribers rarely bother to read.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at mgeist@uottawa.ca or online at http://www.michaelgeist.ca/.

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