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Canadian Journal of Law and Technology

Keywords

Internet of Things, IoT, consumer home electronics, metadata, law enforcement, Charter of Rights and Freedoms, section 8, search of smart home devices

Abstract

Internet of Things devices (also known as smart home devices) are a fast-growing trend in consumer home electronics. The information collected from these devices could prove very useful to law enforcement investigations. These individual pieces of metadata — the collection of which might appear harmless on its face — can be highly revealing when combined with other metadata or information otherwise available to law enforcement. This article builds an argument in favour of recognizing a reasonable expectation of privacy in metadata collected from smart home devices under section 8 of the Canadian Charter of Rights and Freedoms. This article presents a two-step argument in favour of recognizing the collection of smart home metadata as a ‘‘search” under section 8. First, it builds on case law on house perimeter searches to argue that — in the case of smart home devices — the collection implicates both territorial and informational privacy interests. Second, the article argues that metadata, on their own, are pieces of information that attract a reasonable expectation of privacy. R. v. Spencer was not the final word on the question of inferences. Several section 8 cases decided by the Supreme Court of Canada, and the R. v. Orlandis-Habsburgo decision, point to the willingness of courts to engage with the complex topic of data processing. They also point to the need to return to the values that underlie section 8 of the Charter with the goal of clarifying its approach to predictions and probabilities as information outcomes that deserve constitutional protection.

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