Does the Government Need a Warrant to Access Your Internet Search History?

Posted by  on March 5, 2024
Does the Government Need a Warrant to Access Your Internet Search History?

Blog by Arun S. Maini

Do you want the government or the police to know every internet search you have ever made? Or should they have to prove to a court that there is a legitimate reason to seek that information?

Our lives are now lived online as well as in person. Remember the old saying “You are what you eat”? We could say that about our use of the internet: “You are what you search”.

Corporations like Amazon and Google and Apple collect so much data about our internet searches that they know our preferences better than we do ourselves. That is why they can curate content and put it in front of us before we even ask for it.

Have you ever been surprised that mere hours after looking for something online, let’s say for a new TV, you start receiving ads in various online ways relating to buying TVs? These companies are watching and tracking your every online move. They know what you want, who you communicate with, and where you are at any given moment.

You probably don’t feel threatened by a corporation that just wants to sell you stuff. But what if your government started acting more like the Chinese Communist Party or the Russian state? Look at what is going in the US at the moment, and that doesn’t feel like such a distant concern.

Do you think the government should be able to track and gather information about you the way that corporations can?

But what about investigating and deterring crime, especially online crime? As computer networks become more complicated and the internet reaches into every corner of our lives, fraudsters, hackers and organized crime become more dangerous and yet more difficult to stop. Shouldn’t law enforcement have the tools to investigate and pursue such crime?

In Canada, government actions are subject to the Charter of Rights and Freedoms. The state is not permitted to enter your home or your computer, intrude on your privacy or seize your property without a proper legal basis. Requiring the police to have proper grounds, or a warrant, to intrude on your privacy, protects each of us from government overreach. That might not seem like such a big deal now, but having privacy laws and constitutional protections will shield us should the day arrive when a government or police agency starts to think that their political ends justify any means at their disposal.

Did you know that corporations are not subject to the Charter of Rights? That your constitutional rights against unreasonable search and seizure, or the right to life, liberty and security of the person do not apply when a corporation is involved?

The Charter of Rights cannot stop corporations from collecting, organizing and sharing your data or your internet search preferences. The police routinely ask corporations to provide them with internet search data, such as IP addresses (which are unique identification numbers that keep track of every online search). Corporations can decide whether to provide that information or not. Most of those decisions are made by the company’s security personnel, often former police officers and colleagues of the very investigators who are asking for the information. Not surprisingly, they tend to give police what they ask for.

The Supreme Court of Canada has now put a stop to that practice. Recognizing that corporations are not subject to the Charter of Rights, the Court, in a case called Bykovets, has chosen to stop the police from making an end-run around our constitutional rights by going directly to the corporations that collect our data. Instead, the police are now required to obtain a warrant or production order from the court before being permitted to ask for and receive the search history of IP addresses that they are interested in.

The Supreme Court made this statement about the importance of protecting the privacy of all Canadians: “We have defined section 8 (of the Charter) in terms of what privacy should be- in a free, democratic, and open society- balancing the individual’s right to be left alone against the community’s insistence on protection.”

Calling IP addresses, which link each of us to our internet search history, “the first digital breadcrumb that can lead the state on the trail of an individual’s Internet activity”, the Supreme Court has made it clear that “those who use the Internet should be entitled to expect that the state does not access this information without a proper constitutional basis.”

By requiring the state to seek judicial permission to access this private information, the Court has removed the decision about whether to turn over IP addresses to the police from corporations and put it back where it belongs: under the Charter of Rights.

The United States does not protect the privacy of its citizens’ IP addresses the way that this decision protects Canadians. And as the Internet takes greater hold over our lives, and democracy threatens to further erode in the US, staking out those fundamental rights now becomes more important than ever.

Arun S. Maini at the Defence Group has over 25 years of experience. If you or a loved one are facing criminal charges and need the advice of an experienced and skilled lawyer to help you through the legal process, call The Defence Group for a free consultation at 877-295-2830 or email us through the Contact Us link throughout our website.

Arun S. Maini has been a criminal lawyer for over 25 years.

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Arun S. Maini, lawyer and founder of The Defence Group, has practised criminal law since 1995. He’s a graduate of the University of Toronto and Dalhousie University Law School. After completing his articles at a Bay St. law firm, Mr. Maini joined the federal Department of Justice as a prosecutor of drug trafficking, tax evasion, and immigration fraud cases in Toronto, Brampton and Vancouver. In 1999, Mr. Maini transferred to the provincial Crown attorney’s office in Brampton, where he prosecuted a wide range of criminal offences, from theft to murder. In 2003, Mr. Maini left the government to establish The Defence Group. Mr. Maini handles all criminal offences and regulatory prosecutions.

Over more than 25 years as a criminal lawyer, Mr. Maini has prosecuted and defended hundreds of criminal cases, and has extensive jury trial experience. Mr. Maini has also lectured at The Advocates’ Society and has taught advocacy at the Law Society and Osgoode Hall Law School’s Intensive Trial Advocacy program. Maini appears occasionally in the media to comment on criminal law – see examples from the CBC, the Toronto Star, and the National Post.

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