Can illegally obtained data be used in a civil proceeding?
Written by Ruth Promislow and Lauren Shneer
In the world of cyber hacks and leaks, there are two general categories of players: the fraudsters who steal data in order to obtain a profit, and the “hacktivists” who exposes data, purportedly for the greater good.
Attacks by vigilante hackers highlight an emerging issue in the world of cyber-security: can illegally obtained data be used in a civil proceeding? A consideration of the case law in Canada suggests that the courts will permit its use provided that the cyber-breach was committed by a third party and not by the litigant him or herself.
Incidents of hacktivism are on the rise. High profile cases include the release of the Panama Papers, a database containing over 11.5 million stolen records, Edward Snowden's release of the U.S. National Security Agency's global surveillance records,1 and Julian Assange's creation of WikiLeaks, which continues to anonymously publish “restricted official materials”2. Most recently, the digital anarchist group, Anonymous, announced “a cyber-attack war against the Bank of England and [the] New York Stock Exchange”.3
With the release of the Panama Papers, state officials around the world were reported to have seized upon the evidence to initiate investigations or inquiries aimed at those identified in the stolen data. With the further release of the searchable database containing 200,000 documents from the Panama Papers, it can be expected that this evidence will be relied on in civil proceedings as well.
The admissibility of stolen data was recently addressed by the Federal Court of Missouri in a class action suit brought against Avid Life Media Inc., the company that owns and operates AshleyMadison.com.4 In this case, the plaintiffs sought to rely on records they obtained solely as a result of the “altruistic” cyber-attack perpetrated against the company and its members. In response, the defendants brought a motion to prevent the plaintiffs from using the stolen documents.5
The Ashley Madison hack was executed by a group of hackers called The Impact Team, self-proclaimed cyber vigilantes on a moral mission to shut down the site and expose the “cheating dirtbags” who use it.6 The anonymous cyber-group ultimately disclosed millions of Ashley Madison users' personal and financial information, as well as internal discussions regarding corporate data security.
In considering whether to allow the plaintiffs to refer to the once-confidential data in proving their case, Judge John A. Ross answered in the negative.7 His Honour observed that even though the records had already been published online, that did not change their confidential nature or the fact that they were stolen. Judge Ross explained that stolen information “cannot form the basis for a good faith belief of evidentiary support for a pleading”8 and concluded that the plaintiffs had no lawful right to use these records until and unless they were disclosed during the litigation.9
A review of the relevant Canadian case law suggests that our courts may decide the issue differently.
As a starting point, the Supreme Court of Canada has ruled that relevant evidence, no matter how obtained, is presumptively admissible.10 While that presumption is rebuttable, nearly all the blanket prohibitions on using or disclosing “stolen” data arise in the criminal context in connection with data improperly obtained by the police and the protection of Charter rights.11
In the civil context, there are no inherent safeguards preventing the retention, use, or disclosure of evidence obtained through a cyber-breach. It is the rules of evidence12 and civil procedure that govern the conditions and limits on admissibility of hacked or leaked evidence.
Under the Ontario Rules of Civil Procedure (the Rules),13 for example, parties are obliged to produce any non-privileged documents (including those in electronic form) that relate to the matters in issue, regardless of how personal or confidential they may be. Therefore, to the extent that information obtained through the cyber breach is relevant, not privileged, and is in the possession or control of one of the parties to the litigation, the evidence is subject to production in the litigation.
In Osiris Inc. v. 1444707 Ontario Ltd.,14 an employee hacked into his employer’s server and stole more than 2,000 records in an effort to protect himself from being punished for refusing to partake in his employer's unethical conduct. The employee then turned over these records to the plaintiffs of a civil suit commenced against the same employer. The court observed that the Personal Information Protection and Electronic Documents Act15 did not “usurp the statutory jurisdiction” of the judge to rule on admissibility, and that any complaints to the Privacy Commissioner were a separate matter.16 The court allowed the plaintiffs to use the stolen records, stating: “[i]t is still the law that illegally obtained evidence is not, per se, inadmissible in civil proceedings”.17
In Solara Technologies Inc. v. Bearda,18 the British Columbia Court of Appeal considered whether evidence should be admitted that was obtained through an improperly obtained Anton Piller order. The court held that the exclusion of the relevant evidence would have the effect of barring the court from achieving justice. While not directly on point, this decision underscores the judicial focus on the inclusion of relevant evidence.
However, the courts have been critical of litigants who obtain evidence through “self-help” mechanisms, which suggests that a party to litigation will not be permitted to rely on documents they illegally obtained.
In Autosurvey Inc. v. Prevost,19 the company had hacked into its former employee’s private server and copied everything on it to preserve potential evidence, including the private communications exchanged between the employee and his solicitor. The court not only threw out the stolen evidence, but stayed the proceeding entirely, admonishing the plaintiff's “brute force entry” into the defendant's computer server.20
In Miller v. Miller,21 counsel sought to make use of a letter he likely knew had been stolen by his client, Ms. Miller, from her father's private litigation file. Mr. Miller's lawyer asked the court to exclude the letter from evidence. The court held that even though the document was not privileged (since, by that time, privilege had been waived), counsel should have raised the issue before relying on the document.22 Ms. Miller and her counsel were ordered to return any documents taken from Mr. Miller's file, and Ms. Miller's lawyer was disqualified as counsel of record.23
In Firemaster Oilfield Services Ltd. v. Safety Boss (Canada) (1993) Ltd.,24 the court refused to admit documents obtained from a separate proceeding that were subject to a confidentiality agreement. The court found that, whether or not the documents were privileged, “the obligation to deal with other lawyers honourably and with integrity can only lead one to the conclusion … that there is no right to retain improperly obtained documents”.25 Even though the documents could have been produced in discoveries, the court said it was wrong of the solicitors to help themselves to them. The evidence was thrown out and the solicitors were ordered to pay the costs of the application.26
In view of the above jurisprudence, there is reason to believe that, contrary to the approach taken by the Federal Court of Missouri in Ashley Madison suit, illegally obtained evidence will be admitted provided that the litigant himself did not commit the cyber-attack.
The rise of the vigilante hacker has led some to question the propriety of admitting stolen data as it may be seen to encourage further acts of hacktivism. It remains to be seen whether this public policy argument will alter the current approach in Canada.
1 See: Rusbridger, Alan; MacAskill, Ewen "Edward Snowden interview – the edited transcript". The Guardian (July 18, 2014).
2 Online: https://wikileaks.org/.
3 See video published by Anonymous on its youtube channel. Online: https://www.youtube.com/watch?v=mdjRkLGEa5I (May 4, 2016).
4 In re Ashley Madison Customer Data Security Breach Litigation, No. 15-2669, E.D. Mo.; 2016 U.S. Dist. LEXIS 57619 [Ashley Madison].
5 Motion for Protective Order Precluding Use of Stolen Documents by Plaintiffs or their Counsel (Doc. No. 115); Avid Life Media Inc. also filed a notice of supplemental authority related to its motion for protective order on April 5, 2016 (Doc. No. 137).
6 Republished online by KrebsOnSecurity.com, the in-depth security news and investigation site that broke the news of the hack. See: KrebsOnSecurity, "Online Cheating Site AshleyMadison Hacked" (July 2015), online: https://krebsonsecurity.com/2015/07/online-cheating-site-ashleymadison-hacked.
7 Ashley Madison, supra note 1 (Order of April 29, 2016, Doc. No. 2669).
8 Ibid at p. 8.
9 Ibid at pp. 9-10.
10 Queen v Wray,  S.C.R. No. 272 (S.C.C.); Sopinka and Lederman et al., “The Law of Evidence in Canada; Second Edition” (Butterworths & Company (Canada) Limited, 1999).
11 There are however examples of courts admitting evidence in a criminal proceeding obtained by a third party hacker, for example see: R. v. Spencer, 2014 SCC 43.
12 Even where not presumptively excluded, to be admitted, evidence must meet the criteria set out in the Canada Evidence Act, RSC 1985, c C-5, which "applies to all criminal proceedings and to all civil proceeding".
13 R.R.O. 1990, Reg. 194 (the Rules).
14  O.J. No. 5527 (Sup. Ct.).
15 S.C. 2000, c. 5
16 Supra note 21 at para 84.
17 Ibid at para 75.
18 2007 BCCA 402
19  O.J. No. 4291 (Sup. Ct.) [Autosurvey] [cited with approval most recently in National Bank Financial Ltd. v. Barthe Estate, 2015 NSCA 47 at para 226].
20 Ibid at para 19.
21  A.J. No. 34 (Q.B.).
22 Ibid at para 6.
23 Ibid at para 5.
24  A. J. No. 1466 (Q. B.), affirmed  A.J. No. 1317 (C.A.),
25 Ibid at para 22.
26 Ibid at para 35.