Court nixes Internet privacy claim by man convicted of child porn

TORONTO – A man convicted of child-pornography offences did not have his rights breached when a major Internet service provider gave his name and address to police, Ontario’s top court ruled Tuesday.

Police had no warrant when they requested the subscriber information from Bell Sympatico during the course of an investigation into a complaint.

“The appellant’s name and address was not the kind of information that would reveal intimate personal details or lifestyle choices,” the Ontario Court of Appeal said in upholding the conviction.

At the same time, the Appeal Court said its ruling did not amount to blanket approval for ISPs to provide customer information to investigators.

The ruling is significant because it’s the first time the province’s top court has weighed in on whether a computer user has a reasonable expectation of privacy when accessing the Internet.

The case arose in 2006, when the owner of a German website filed a criminal complaint alleging a computer user was exchanging child pornography on the site.

German authorities investigated, and forwarded information about the user’s Internet connection to the RCMP, who determined the person was connecting from Sudbury, Ont., through Bell Sympatico.

RCMP then asked Bell Sympatico to identify the user, and the company provided police with David Ward’s name and address.

The Mounties handed the info over to Sudbury police, who after further investigation, obtained a search warrant for Ward’s home and computer.

The search turned up 30,000 images and hundreds of videos of child pornography.

In August 2008, Judge Randall Lalande of the Ontario Court of Justice jailed Ward for 11 months and gave him three years probation for possessing and accessing child pornography.

In appealing the conviction in January, Ward argued his rights were breached because he had a “reasonable expectation of privacy” regarding his name and address.

Police, he said, should have obtained a warrant before asking Bell for that information.

For its part, the Crown argued the trial judge was correct to find Ward had no reasonable privacy expectation regarding his subscriber information.

In agreeing with the trial judge, the Appeal Court looked at — among other things — police and ISP protocols as well as at the service agreement Ward had with Bell Sympatico.

The court also noted the difficulties police have in combating the scourge of child porn.

“Access to, the possession of, and trafficking in child pornography over the Internet present serious and pressing societal problems,” the Appeal Court said in its ruling.

“Easy entry to the Internet from almost anywhere, the international nature of the trade in child pornography, and user anonymity combine to make effective law enforcement difficult.”

As a result, several Canadian ISPs — Bell Sympatico included — and police have a protocol for turning over subscriber information in probes relating to the sexual exploitation of children, the court said.

The court also noted various rulings on constitutional challenges to the police practice of getting customer information from Internet service providers to obtain search warrants.

Most judges have found no breach, while some have found a breach, the court said.