Privacy Digest

Ex-pitchman's trial could set precedent - Via National Post (Canada):

The trial of a former television pitchman could be a precedent setting case in deciding the privacy rights of Internet subscribers who are the subject of a criminal investigation.

[...]

After discovering a specific Internet protocol address and learning it belonged to a Bell Canada customer, police executed a search warrant to obtain the subscriber information from the Internet Service Provider (ISP).

Mr. Smith is arguing there were not reasonable grounds for the first warrant to be issued or for a second one to be executed at his home.

The Crown responded that Mr. Smith has no right to challenge the warrant executed against Bell because there are no privacy rights in Internet subscriber information.

In a 2005 civil case about the downloading of music from file-sharing networks, the Federal Court of Appeal found there were privacy rights in this data and it could not be disclosed without a court order.

The prosecution of Mr. Smith is believed to be the first time a Superior Court in Canada has been asked to decide whether police are required to obtain a search warrant to get subscriber information in a criminal case and whether a defendant can challenge the warrant.

Some Internet providers voluntarily disclose this information to police in child pornography cases, but not other criminal investigations.

A provincial court judge in Ontario ruled earlier this year that there are privacy rights in subscriber information, which includes the name, address, account and e-mail address of a customer (the Crown has appealed this ruling).

Crown attorney Allison Dellandrea argued yesterday it is simply "customer information" that police are seeking. "It doesn't matter what police do with it," said Ms. Dallandrea.

When police have subscriber information and an IP address they can find "deeply personal" data related to an individual's Internet use and it should be possible to challenge whether the warrant was obtained lawfully, argued defence lawyer Cindy Wasser.

"You can't just say this case is about child pornography. This case is about the Internet, how we use it and the expectation of privacy," said Ms. Wasser.

Superior Court Justice Robert Clark appeared unconvinced.

"It seems to me we are rushing headlong to protect these interests when people are casting them away," said Judge Clark, who made reference to people talking loudly on wireless phones in public places and the use of Internet social networking sites.

"Why do I care whether the Internet works. Quite frankly I could care less about the right of people to use the Internet," the judge stated.

Judge Clark suggested that subscriber information is not necessarily personal data. "It just gives an identity to a [Internet] profile," he said.

The judge said he will try to give a ruling on this issue tomorrow.

(Read Original Article - Via National Post (Canada).)