Computer Crime Research Center


Privacy key in child porn case

Date: May 06, 2008
By: Shannon Kari

TORONTO - It was not difficult to sense the view of Ontario Superior Court Justice Robert Clark last month during arguments about whether there are privacy rights in Internet subscriber information when police are conducting a child-pornography investigation.

The judge and former prosecutor often put a hand over his face and displayed a pained expression while listening to defence lawyer Cindy Wasser in the Toronto courtroom.

"It is not a proposition that appeals to me, that your client has a direct privacy interest," said the judge on one occasion. On another, he suggested an argument that might help the position that her client "innocently acquired these images," with a tone of sarcasm clearly evident.

Judge Clark was presiding over the trial of Robert Smith, an actor formerly featured in a series of high-profile commercials for Alexander Keith's ale, now facing charges of possession of child pornography and making child pornography available.

Ms. Wasser was challenging the legitimacy of police search warrants used to obtain the subscriber information of Mr. Smith and to search his home.

In response, Crown attorney Allison Dellandrea argued there are no privacy rights in subscriber information and even though police obtained a warrant in this case, they are not required to by law.

It is an issue that has not been determined by a Superior Court-level judge in a criminal proceeding in Canada and Judge Clark was scheduled to release his decision today.

A possible plea bargain may mean the judge does not issue his ruling.

His reaction during the legal arguments, however, was not necessarily a surprise, because the revulsion over child pornography is so great that it is arguably unlike any other criminal offence.

"There is no greater stigma in society," said David Fraser, a Halifax lawyer who specializes in privacy issues. A charge of murder probably has less public shame attached to it than child pornography, Mr. Fraser suggested.

It is a view that is shared by police. The individuals who abuse children to create actual child pornography are engaging in acts "more vile than murder," said RCMP Staff Sergeant Mike Frizzell, who works with the federal National Child Exploitation Co-ordination Centre.

However, what has not been clearly decided by the courts is whether police are subject to many of the same checks when investigating suspected child pornography distribution on the Internet that are in place for other criminal offences.

The Federal Court of Appeal has ruled that search warrants are required to obtain Internet subscriber information from service providers in a civil lawsuit about alleged illegal music downloading on file-sharing networks.

Police say this is an unfair obstacle in criminal investigations targeting child pornography.

Subscriber names and addresses are "not core biographical information," Staff Sgt. Frizzell said. If police find Internet protocol (IP) addresses suspected of accessing child pornography, the name and address are simply the start of the investigation. A warrant would be required to search someone's computer, the officer said.
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