Over the past couple of days, there has been far too much emphasis placed on process and not nearly enough on privacy. While a PIA may be useful, the concerns with traveller surveillance are about far more than following the right process:
- the CBSA has suggested that similar audio-visual surveillance is already in place in other airports without privacy impact assessments or public notices.
- it appears the CBSA will have the capability of eavesdropping on conversations even though there is no evidence or even suspicion of wrongdoing.
- the CBSA seems to think that a website notification is good enough to meet reasonable notice requirements.
As Ontario Privacy Commissioner Ann Cavoukian rightly notes, a website notice is completely unacceptable as a notification in the area where the conversation is being recorded is needed. Further, David Fraser argues that though details are still limited, the plans seemingly run counter to established Canadian law and could be subject to a constitutional challenge.
While it is impossible to provide a complete analysis given the still-limited details, we don’t need a privacy impact assessment to know that unlimited, warrantless eavesdropping on Canadians in major airports should simply be a non-starter. Canada doesn’t eavesdrop on private conversations without court oversight and reasonable and probable grounds to do so. That should remain true regardless of the location. Further, privacy impact assessments are not even binding, making it entirely possible that the government will simply ignore the Commissioner’s recommendations (much as they did with Bill C-30). In fact, given this week’s revelations, the Commissioner should not wait to receive a proposal for review. The law gives her office audit powers, which should be used immediately to conduct a full scale review of current border audio and video surveillance. Canadians have faced two serious threats to their privacy in recent months. There is no reason to wait for a third.