Thank You For Calling Rogers. Please Hold While We Ensure You Have A Search Warrant

And now, a rare “Good job, Rogers!” moment. Starting presumably now, there’ll be no more of that here’s everyone’s personal info, officer stuff going on.

After hearing your concerns and reviewing the Supreme Court ruling from last month, we’ve decided that from now on we will require a court order/warrant to provide basic customer information to law enforcement agencies, except in life threatening emergencies. We believe this move is better for our customers and that law enforcement agencies will still be able to protect the public.

Supreme Court decision? Yes. That would be this one from June, which looks like it’s going to pretty well nuke the ever loving hell out of one of the cornerstones of the government’s proposed internet spying law.

A breakdown of some of the relevant points:

First, the Court recognizes that there is a privacy interest in subscriber information. While the government has consistently sought to downplay that interest, the court finds that the information is much more than a simple name and address, particular in the context of the Internet. As the court states:

the Internet has exponentially increased both the quality and quantity of information that is stored about Internet users. Browsing logs, for example, may provide detailed information about users’ interests. Search engines may gather records of users’ search terms. Advertisers may track their users across networks of websites, gathering an overview of their interests and concerns. “Cookies” may be used to track consumer habits and may provide information about the options selected within a website, which web pages were visited before and after the visit to the host website and any other personal information provided. The user cannot fully control or even necessarily be aware of who may observe a pattern of online activity, but by remaining anonymous – by guarding the link between the information and the identity of the person to whom it relates – the user can in large measure be assured that the activity remains private.

Given all of this information, the privacy interest is about much more than just name and address.

Second, the court expands our understanding of informational privacy, concluding that there three conceptually distinct issues: privacy as secrecy, privacy as control, and privacy as anonymity. It is anonymity that is particularly notable as the court recognizes its importance within the context of Internet usage. Given the importance of the information and the ability to link anonymous Internet activities with an identifiable person, a high level of informational privacy is at stake.

Third, not only is there a significant privacy interest, but there is also a reasonable expectation of privacy by the user. The court examines both PIPEDA and the Shaw terms of use (the ISP in this case) and concludes that PIPEDA must surely be understood within the context of protecting privacy (not opening the door to greater disclosures) and that the ISP agreement was confusing at best and may support the expectation of privacy. With those findings in mind:

in the totality of the circumstances of this case, there is a reasonable expectation of privacy in the subscriber information. 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. A request by a police officer that an ISP voluntarily disclose such information amounts to a search.

Fourth, having concluded that obtaining subscriber information was a search with a reasonable expectation of privacy, the information was unconstitutionally obtained therefore led to an unlawful search. Addressing the impact of the PIPEDA voluntary disclosure clause, the court notes:

Since in the circumstances of this case the police do not have the power to conduct a search for subscriber information in the absence of exigent circumstances or a reasonable law, I do not see how they could gain a new search power through the combination of a declaratory provision and a provision enacted to promote the protection of personal information.

So while Rogers certainly didn’t do this purely out of the goodness of it’s big, corporate heart, the company still deserves some credit for not dragging its feet on the issue. Hopefully Bell and the others will adopt similar policies soon.

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