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R. v. Bykovets – Privacy and the Internet

March 19, 2024 - Renee Barrette, Analyst

In a recent decision called R. v. Bykovets, 2024 SCC 6, the Supreme Court of Canada (SCC) ruled that the police must get a warrant before obtaining access to an individual’s Internet Protocol (IP) address from a third party. In a news release, the British Columbia Civil Liberties Association, an intervenor in the case, called the decision a huge victory for online privacy.

The case involves an individual who was charged with having made fraudulent online purchases from a liquor store. The company that managed the store’s online sales provided the police with the accused’s IP address voluntarily. The accused claimed that this action violated section 8 of the Charter.

The decision, in favour of the privacy rights of the accused, is significant for many reasons including that it recognizes the importance of individuals’ right to privacy in a free and democratic society. Justice Karakatsanis, who wrote the majority decision, stated:

Personal privacy is vital to individual dignity, autonomy, and personal growth. Its protection is a basic prerequisite to the flourishing of a free and healthy democracy.

It also recognizes that an IP address may reveal sensitive personal information about an individual. Further, it finds that the IP address is deserving of protections against unreasonable search or seizure under section 8 of the Canadian Charter of Rights and Freedoms (Charter).

This is not the first time that the SCC has found that the Charter guarantees Canadians a right of privacy. In previous rulings, it has recognized several kinds of privacy namely, physical, or bodily privacy, territorial privacy, privacy of communications and informational privacy.

In R. v. Dyment, the SCC stated that informational privacy is based on the notion of dignity and integrity of the individual and is based on the idea that all information about a person is their own.

IP addresses may reveal sensitive personal information

Writing for the majority of the SCC, Justice Karakatsanis describes an IP address as a unique identification number that identifies the source of every online activity and connects that activity (through a modem) to a specific location.

She added that IP addresses may reveal deeply personal information such as the identity of the device’s user. When correlated with other online information associated with that IP address, it reveals “the first digital breadcrumb that can lead the state on the trail of an individual’s Internet activity.” She wrote that third party websites can track the IP address of each user and added that some websites, such as Google, also collect massive amounts of other information, such as information about users’ searches and location.

Privacy oversight authorities have long recognized the detailed nature of the information that can be discovered through access to an IP address. The federal Office of the Privacy Commissioner issued a paper in May of 2013 which describes the information that could be revealed from a phone number, email address, and an IP address. The paper concluded that knowledge of subscriber information such as phone numbers and IP addresses can provide a starting point to compile a picture of an individual’s online activities, including the individual’s personal interests and organizational affiliations.

While the question of whether an IP address would qualify as personal information under Saskatchewan’s access and privacy laws was not before the SCC in this case, its findings could be relevant to that analysis.

For examples of circumstances where our office has found that an individual’s IP address qualifies as personal information pursuant to subsections 24(1)(e) and (k) of The Freedom of Information and Protection of Privacy Act (FOIP) or subsection 23(1)(e) and (k) of The Local Authority Freedom of Information and Protection of Privacy Act (LA FOIP) see Review Report 147-2022 and Review Report 186-2019.

Application of section 8

Section 8 of the Charter is intended to protect individuals from unjustified state intrusions (such as searches or seizures) upon their privacy. The scope of the protections offered by section 8 is limited by the reasonableness of the individual’s expectation of privacy in a given set of circumstances. This means that when applying section 8 in the context of a law enforcement investigation, the courts weigh or balance reasonable expectations of privacy against legitimate police investigative techniques.

Regarding whether a reasonable expectation of privacy existed, Justice Karakatsanis wrote:

The “reasonable expectation of privacy” analysis revolves around the potential of a particular subject matter to reveal an individual’s biographical core to the state, not whether the IP addresses revealed information about the appellant on these facts. …In my view, the ever-increasing intrusion of the Internet into our private lives must be kept in mind in deciding this case. It is widely accepted that the Internet is ubiquitous and that vast numbers of Internet users leave behind them a trail of information that others gather up to different ends, information that may be pieced together to disclose deeply private details. And, as the expert evidence describes, an IP address is attached to all online activity; it is a fundamental building block to all Internet use. This social context of the digital world is necessary to a functional approach in defining the privacy interest afforded under the Charter to the information that could be revealed by an IP address.

In balancing the reasonable expectation of privacy against the need to combat online crime, the decision recognizes society’s legitimate interest in public safety and security, and the suppression of crime. It notes that the ways in which crimes are committed has evolved with technological developments and police must have tools to investigate these crimes.

The majority concluded its analysis by stating that the burden imposed by recognizing a reasonable expectation of privacy in IP addresses is not onerous as it would only add another step in the investigation process – the need to obtain a warrant.

Many readers will know that the access and privacy laws overseen by our office, FOIP, LA FOIP and The Health Information Protection Act, protect informational or data privacy. They do this by setting rules for the collection, safeguarding, retention, use and disclosure of personal information or personal health information.

Section 8 of the Charter may not apply when most public bodies and trustees engage with individuals through online services or internet-based communications because the activity may not qualify as a search or seizure. However, in light of the SCC findings on IP addresses, they should be aware of the type of information that may be collected through online engagement with the public and what privacy protections need to be in place.

Individuals and organizations may be interested in the resources available regarding privacy, the internet and the Charter on the Office of the Privacy Commissioner of Canada’s (OPC) website. Organizations with law enforcement mandates may be interested in the OPC’s guide titled “A Matter of Trust: Integrating Privacy and Public Safety in the 21st Century”.

More information about the Charter and how it protects privacy, can also be found in our office’s Guide to FOIP and Guide to LA FOIP.

For any questions, contact intake@oipc.sk.ca

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