<rant>

I was a bit sur­prised to find this art­icle that covered the court orders that had required Google to dis­close inform­a­tion on some Gmail users and the sub­sequent orders in Canada against cer­tain Cana­dian ISPs, which was the sub­ject of a pre­vi­ous post. The long and short of it is that the author con­siders Nor­wich orders to be some sort of grave, grave intru­sion on pri­vacy rights and per­sonal liberty. Hence, this dire warn­ing at the end of the article:

No mat­ter how many pre­cau­tions we take to remain private or cloak our iden­tity, the author­it­ies and other poten­tial lit­ig­ants usu­ally have little dif­fi­culty obtain­ing this con­tent. And they do it not by nefar­i­ous mean like hack­ing, but through our very own court system.

Inter­net users every­where would do well to take heed. Your emails — and maybe even your Google searches — could be one sub­poena away from the pry­ing eyes of fed­eral author­it­ies, not to men­tion private litigants.

Why am I sur­prised? Because it seems to lack the most basic under­stand­ing of the legal sys­tem. I won’t get into all the details of the work­ings of Nor­wich orders — the ori­ginal art­icle by Omar Ha-Redeye that I had pre­vi­ously men­tioned does a very good job at that, and I would cer­tainly com­mend it to the author of this art­icle so he may per­haps gain some insight.

The fact of the mat­ter is that no, your pri­vacy rights and right to anonym­ity have not sud­denly dis­ap­peared alto­gether. How­ever, as with all rights there are lim­it­a­tions. Thus, while U.S. cit­izens have the right to bear arms, they do not have the right to shoot people. If someone were to do that, they should reas­on­ably expect their gun (and likely their liberty) to be taken away. Sim­il­arly, if someone uses their right to anonym­ity in an attempt to com­mit a crime or harm someone else, they should reas­on­ably expect that right of anonym­ity to be taken away — at least to the extent it relates to the crime.

Remark­ably, the author seems to sug­gest that the use of “sub­poenas” (pre­sum­ably he meant to refer to the Nor­wich orders) are almost the equi­val­ent of, say, park­ing tick­ets, that the author­it­ies or lit­ig­ants can simply write up  if and when they choose to stomp on someone’s per­sonal liber­ties for no good reason. What an unfor­tu­nate mis­per­cep­tion of the legal sys­tem. The very reason why someone must go to the courts to obtain such as order is to ensure that the interests of the parties involved are bal­anced and safe­guarded. If someone seek­ing the order does not have a reas­on­able and valid basis for doing so, it is likely that the order would not issue.

Regard­ing pro­cess, he cites Eric Gold­man:

“People need to know that very little inform­a­tion that they give or make avail­able to third parties [like Google] is unavail­able to the gov­ern­ment or private lit­ig­ants,” says Eric Gold­man, dir­ector of the High Tech Law Insti­tute at Santa Clara Uni­ver­sity School of Law. “I think most people are sur­prised at how rel­at­ively easy it is for the gov­ern­ment and private lit­ig­ants to obtain ‘their’ information.”

I can’t speak to the pro­cess in the U.S. or what Mr. Gold­man con­siders to be “rel­at­ively easy”. What I can say is that in Canada there is reas­on­able due pro­cess and con­sid­er­a­tion before such orders are issued. Just to cite one part of Mr. Redeye’s article:

A Nor­wich order is a pre-action dis­cov­ery mech­an­ism that is described by Spence J. in Iso­fo­ton S.A. v. The Toronto-Dominion Bank,

Requests for Nor­wich relief are largely unfa­mil­iar to Cana­dian courts.  A Nor­wich order essen­tially com­pels a third party to provide the applic­ant with inform­a­tion where the applic­ant believes it has been wronged and needs the third party’s assist­ance to determ­ine the cir­cum­stances of the wrong­do­ing and allow the applic­ant to pur­sue its legal remedies.

The 5 ele­ments iden­ti­fied in this case for grant­ing such an order include:

(i) Whether the applic­ant has provided evid­ence suf­fi­cient to raise a valid, bona fide or reas­on­able claim;
(ii) Whether the applic­ant has estab­lished a rela­tion­ship with the third party from whom the inform­a­tion is sought such that it estab­lishes that the third party is some­how involved in the acts com­plained of;
(iii) Whether the third party is the only prac­tic­able source of the inform­a­tion avail­able;
(iv) Whether the third party can be indem­ni­fied for costs to which the third party may be exposed because of the dis­clos­ure, some [author­it­ies] refer to the asso­ci­ated expenses of com­ply­ing with the orders, while oth­ers speak of dam­ages; and
(v) Whether the interests of justice favour the obtain­ing of dis­clos­ure.
[emphasis added]

The pri­vacy interests of the alleged wrong­doer were over­come by the last ele­ment, the interests of justice, because of the applicant’s equit­able right to inform­a­tion.  Spence J. poin­ted to Alberta v. Leahy and Bankers Trust Orders (from Bankers Trust Co. v. Sha­pira) indic­at­ing that court orders can over­ride con­fid­en­tial inform­a­tion, even for fin­an­cial records, and Glaxo-Wellcome PLC v. M.N.R. that the pri­vacy interests of alleged wrong­do­ers is some­what diminished.

Per­haps its just me, but this doesn’t sound par­tic­u­larly easy.

Of course, as with most things, the legal sys­tem is cer­tainly not per­fect, and there may well be instances where abuses might occur, or wrong decisions might be made by the courts where the scales of justice tip a bit. But to point at the sky and say it’s fall­ing because of this case seems to me to be some­what pre­ma­ture, to say the least.

Or at very least, as far as pri­vacy con­cerns go, con­sider focus­ing more on things like the NSA and TIA than the courts.

</rant>