Is information obtained from nightclub ID scanners an unfair invasion of privacy?
Many nightclubs these days require visitors to undergo photo identification scanning before they can enter. This might include taking their picture, scanning their ID or both. These scans can be kept by the club for 24 hours and they are mainly used to stop unwanted people from getting in. But what about using this information to identify a person accused of a crime? Would this represent an unreasonable infringement on a person’s right to privacy?
Section 8 of the Charter of Rights guarantees “Everyone has the right to be secure against unreasonable search or seizure.” The truth is, however, people’s right to privacy is impacted frequently by the government, the police and new legislation.
When that happens, Courts have to assess whether the impact is justifiable. To do this, they have to balance the infringement against the reason for the infringement.
The BC Supreme Court was asked to weigh in on the impact on the privacy of information obtained from a nightclub ID scanner in an aggravated assault case last year. Omid Roudiani was found not guilty of punching a man causing him serious brain damage in Vancouver in 2015.
Assessing infringement
Evidence submitted in the trial included a photograph with a name and age obtained from a nightclub database. The nightclub participated in a program whereby all visitors had to present identification and have it scanned before entry. The detective constable investigating the alleged assault obtained the photograph from the nightclub and used it to identify the accused who he believed was also shown in security camera footage leaving the nightclub shortly before the time of the alleged assault.
The defence counsel argued that the information obtained from the nightclub database violated their client’s Charter right to be secure against unreasonable search and seizure and therefore the evidence should be excluded. The defence did not object to the admissibility of the security camera videos but submitted that the police should have obtained judicial authorization before requesting the photograph from the nightclub.
In assessing whether the information infringed on the defendant’s s. 8 rights, the BC Supreme Court examined whether the information could infer other private information such as details of a person’s lifestyle and personal choices. In a previous case, it was established that the purpose of s. 8 of the Charter was to protect a “biographical core of personal information” about an individual which includes information “which tends to reveal intimate details of the lifestyle and personal choices.” Arguably, information which infers the types of nightclubs a person goes to falls under this category.
The judge also discussed what the objective expectations of a person presenting their ID to be scanned by a nightclub would be. In other words, how would they expect the nightclub to use this information and whether there was a reasonable expectation of privacy. The Supreme Court judge found that although there was no evidence in terms of there being an agreement between the visitors and the nightclub, the club was still bound by privacy legislation. The Personal Information Protection Act includes a provision that, in this case, would prohibit the nightclub from collecting or disclosing personal information without the consent of the individual.
Ultimately the judge decided the information violated s. 8, saying: “I find that there was a sufficient reasonable expectation of privacy that the police, in obtaining the information, were conducting a search that should have been the subject of prior judicial authorization.” The evidence was therefore ruled inadmissible.
Lack of information about privacy
People who frequent nightclubs may be surprised to learn that photo ID scans are only kept for 24 hours. Equally, they might have thought the scans were kept for longer than that. What this case highlights is how little we know about how our private information is being used. Perhaps, in the internet age, people generally don’t care about it as much as they used to. That’s why the role of lawyers in protecting Charter rights from gradually being chipped away is becoming more and more important.
This ruling might hopefully lead to change in the way nightclubs inform guests about how their photo ID scanning system works. Would it really kill them to put up a few signs, for example? In terms of the justice system, this case will probably mean that police will need to obtain a warrant before requesting information from nightclub photo databases in the future.