Breadcrumbs

The SCC's landmark privacy decision. Plus the failed legal social media marketing and the decision to keep Trump on the ballot.

It’s been a rocky start to the week. That’s mostly my fault. But Porter Airlines is at least partially to blame for cancelling my Sunday flight and leaving me stranded in Boston overnight.

To commemorate the occasion, here’s an inscription I saw outside the US Court of Appeals for the First Circuit:

Stone inscription with quote from the Constitution of Massachusetts. "It is essential to the preservation of the rights of every individual, his life, his liberty, proprty, and character, that there be an impartial interpretation of te laws, and administration of justice..."

I might quote the first sentence back to Porter’s customer service team, depending on how my compensation request goes.

— Dylan Gibbs

TODAY'S DOCKET

6 min read

  • SCC charts a new course for online privacy

  • Saskatchewan won’t remit the carbon tax

  • Legal social media marketing backfires

  • Trump stays on the ballot, but the SCOTUS court staff have regrets

SCC

Supreme Court goes mosaic on privacy

A mosaic of images making up a human face. The smaller images forming the mosaic are technology and internet related.

Everyone with a burner account can rest a bit easier — Zuckerberg and Musk can’t just hand your IP address over to the police. According to last week’s landmark Supreme Court decision, internet users have a reasonable expectation of privacy in their IP address. And that means police can’t go after an IP address without a warrant.

What happened: Police were investigating fraudulent online purchases made through Moneris, a payment processor. Without a warrant, police asked Moneris to identify the IP address that made the purchases. Moneris complied.

Then police did get a warrant. The warrant ordered Telus (the IP address owner) to identify the customer behind the IP address. That led to Mr. Bykovets.

  • Mr. Bykovets argued police needed to get a warrant earlier — before getting the IP address from Moneris.

  • The Crown argued that an IP address is useless until police link it to someone’s identity. Since police already need a warrant to get customer information from internet service providers like Telus, there’s no reason to require a separate warrant for the IP address itself.

The Supreme Court sided with Mr. Bykovets. Writing for the majority, Justice Karakatsanis said it’s not just about the IP address. Many websites log online activities and associate those activities with IP addresses. Pieced together with information from around the web, an IP address can reveal our deepest browsing secrets. And that’s about as personal as it gets these days.

It didn’t matter that police used a warrant to track down Mr. Bykovets instead of piecing together information about him online. The theoretical risk of police collecting information from around the web was enough.

IP addresses are not just meaningless numbers. Rather, as the link that connects Internet activity to a specific location, IP addresses may betray deeply personal information — including the identity of the device’s user — without ever triggering a warrant requirement… [A]n IP address is the first digital breadcrumb that can lead the state on the trail of an individual’s Internet activity.

Not everyone was on the same page. As foreshadowed by the Court's decision to rehear this case, the judges were split. Justice Cóté authored the dissent, joined by three of her colleagues.

According to the expert evidence, it is only when an IP address is combined with other information that an IP address may tend to reveal intimate information about an individual… Without more, all an IP address reveals to the police is a user’s [internet service provider] — hardly a particularly private matter, let alone “core biographical information”.

Para 148 (Justice Cóté)

Big picture: Instead of focusing on the IP address as a single data point, the majority considered what that data point tells us about the bigger picture. That’s a big (and novel) shift in perspective, which will likely have broader implications down the line.

HEARSAY ROUNDUP

Canadiana

🛢️ The Athabasca Chipewyan First Nation filed a lawsuit against the Alberta Energy Regulator over tailings spills from an Imperial Oil facility.

📄 After two years without a collective agreement, Manitoba Crown Attorneys finally secured a pay bump through arbitration.

🙅 Saskatchewan officially announced that it won’t be paying carbon tax to the federal government. We’ll have to wait and see whether federal attempts to enforce the tax lead to constitutional litigation. The federal government is already planning to withhold carbon rebates from Saskatchewan residents to offset the province’s non-payment.

🤝 British Columbia is piloting programs to combat PTSD among jury members. The pilots involve a peer support program with former jury members and a training program for courthouse sheriffs.

😬 A Quebec lawyer’s marketing video went viral, but not in the rainmaking way she was probably hoping for. During a recent murder trial, Vanessa Pharand posted a social media video with the hashtag #htgawm (how to get away with murder). The video showed her in the courthouse, with Coolio’s classic Gangsta’s Paradise playing in the background. The Barreau du Québec wasn’t happy about it. If the hashtag was strike one, the rest of the strikes probably came from Coolio’s lyrics:

I ain't never crossed a man that didn't deserve it
Me be treated like a punk, you know that's unheard of
You better watch how you talkin' and where you walkin'
Or you and your homies might be lined in chalk

Coolio, Gangsta’s Paradise

Beyond the border

💃 France became the first country to expressly guarantee the right to abortion in its Constitution. The closest you’ll find in any other constitution is the right to “decide on having children”.

🗳️ A unanimous US Supreme Court held that states need to keep Donald Trump on the 2024 election ballot. The Court said ballot removal for engaging in insurrection needs to come from Congress, not individual states.

The decision alone was newsworthy, but the Court also happened to publish the opinion with some lingering metadata. The final decision consisted of a majority opinion and two concurrences. But information hiding in the PDF document revealed that one of the concurrences was originally a partial dissent authored by Justice Sotomayor.

FROM THE READERS

I’ve recently written about the BC case involving hallucinated case citations, calling it a Canadian “first”. Hearsay reader Sancho McCann pointed out that it would be more accurate to call it the first known case of a lawyer filing AI-based hallucinations.

Back in May (even before the now infamous New York lawyers made headlines), a self-represented litigant seems to have submitted fake cases to the Ontario Labour Relations Board. The self-rep was candid about using ChatGPT to draft his materials, but — even though his citations seemed fishy — the Board didn’t make a big deal of it:

I make no comments about the reliability or accuracy of the [ChatGPT] platform or its helpfulness in creating submissions used in the course of legal proceedings. Ultimately, the Board must assess a party’s position based upon the contents of the submissions.

Many of the cases relied upon by the applicant are presented without any citation or indication of where those cases can be located. Others have only a partial citation… In the absence of being able to locate the cases … it is difficult to [give] them any weight.

2023 CanLII 43759 (ON LRB), paras 12-16

Thanks Sancho!

Here’s what one reader had to say about Friday’s edition of Hearsay:

Dylan Gibbs

That’s all for today.

You can also find me on LinkedIn and X/Twitter @DylanJGibbs.

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