The Expansion of Warrantless Disclosure Under S-4: Government’s Response Fails to Reassure

My post and column on the expansion of warrantless disclosure under Bill S-4, the misleadingly named Digital Privacy Act, has attracted some attention and a response from Industry Canada.  The department told iPolitics:

“Companies who share personal information are required to comply with the rules to ensure that information is only disclosed for the purpose of conducting an investigation into a contravention of a law or breach of an agreement. For example, self-regulating professional associations, such as a provincial law society, may wish to investigate allegations of malpractice made by a client. When organizations are sharing private information, the Privacy Commissioner can investigate violations and may take legal action against companies who do not follow the rules. This is consistent with privacy laws in British Columbia and Alberta and was recommended by the Standing Committee Access to Information, Privacy and Ethics.”

The response may sound reassuring, but it shouldn’t be.

First, the Privacy Commissioner of Canada can obviously address complaints regarding companies that do not follow the rules. However, the new rules plainly allow warrantless disclosure of personal information for an investigation into a breach of an agreement or a contravention of the laws of Canada or a province that has been, is being or is about to be committed. This broadly worded exception will allow companies to disclose personal information to other companies or organizations without court approval.

Second, the disclosure itself is kept secret from the affected individual, who is unlikely to complain since they will be unaware that their information has been disclosed. 

Third, allowing a regulated industry to conduct investigations (such as a provincial law society) is a far narrower issue than the wide open warrantless approach found in the bill.

Fourth, while the Standing Committee on Access to Information, Privacy and Ethics may have recommended a similar reform in 2006, that recommendation was rejected by both the Conservative government and the Privacy Commissioner of Canada. The committee recommendation appears to have come from a single submission from the Canadian Bar Association. The CBA appeared before the committee but was not questioned about the proposal.
The CBA proposal focused specifically on personal information legally available to a party to a legal proceeding. That is much narrower than the Bill S-4 provision. 

Yet even that narrower proposal was rejected by the Conservative government in its response to the committee recommendations:

The government notes the Committee’s recommendation and acknowledges that it was made in response to concerns expressed by certain stakeholders regarding the need to ensure that PIPEDA does not impede litigation procedures.  However, the government does not share the Committee’s view that such an amendment is necessary at this time.

The Privacy Commissioner of Canada also publicly opposed the recommendation, which she included among the six issues about which she had particular concerns:

The Canadian Bar Association recommended that the AB and BC Acts both provide clarity in regard to information legally available in a legal proceeding. I do not believe that this issue has posed any great difficulty over the past five years. The OPC has stated in complaints that the access provisions of PIPEDA may be broader than the requirements of discovery, depending on the breadth of documents relevant to a proceeding.

In other words, Bill S-4 contains an expanded version of a provision that one group asked for without facing any questions, that the government rejected when it was proposed, and about which the Privacy Commissioner of Canada expressed particular concern. In response, Industry Canada claims that Canadians can file complaints if the provision is misused, but by definition they will not know that their personal information has been disclosed.


  1. golfasaurus says:

    S-4 as it applies to ISP’s
    I believe I understand the implications of S-4, and it does bother me greatly.
    Nevertheless I wonder if it would be of much use to copyright trolls.

    Every ISP in Canada must be aware of the Distributel and Teksavvy cases.
    Neither Distributel nor Teksavvy got into trouble from the courts over the way they handled their respective troll battles. Fighting back even slightly allows an ISP to perform damage control and even look like a hero(like Distributel, IMO).

    Canadian ISP’s may not need to fear the courts if they secretly hand out confidential customer information to trolls, but it would take a particularly stupid ISP CEO to think his company wouldn’t take a serious credibility hit if their customers suddenly started receiving the original Voltage demand letter en masse without any warning whatsoever.

    Bell, Rogers and Videotron notwithstanding, of course…

    There’s just no way for the ISP to hide their involvement in such a case.

    I don’t know how many customers Teksavvy lost over Voltage (I doubt Distributel lost any at all over NGN), but I’m certain Teksavvy would have lost far more customers if they had done nothing.

  2. @golfasaurus
    This goes far beyond copyright trolls. I think any ISP CEO who doesn’t start to fight this now, is particularly stupid. It’s bound to blow back on them once this is all stuck down on constitutional grounds.

  3. Interested bystander
    When the candy is available, at the click of a mouse, children will grab for it and a free-for-all will ensue, outweighing all threats of punishment.
    Why doesn’t our government just block all torrent sites? Because it’s impossible, since many or all are located on Mars.
    What to do – hidemyass – exists, as do VPNs
    Sooner or later, the gov’t will realize that they can’t win this cat and mouse game.

    Media companies claim they are losing big $.
    False for music, false for movies. I wonder. What percent of the population even knows how to download? 5%, 10%? Artists may not get 100% royalty fees, but they are probably getting their fare share. Why doesn’t the gov’t do some studies and produce statistics showing how big media is losing out and are at the point of declaring bankruptcy? Because it ain’t happening.

  4. Anonymous, too says:

    This is between me and my ISP
    This is a civil matter, between me and my ISP, and if I feel the need to take them to court, what conceivable authority should the federal government have to interfere with this right of mine? My rights are mine alone. They are not available for any government to take away.

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  6. We Stand On Guard for Thee!
    Government officials are in “breach of an agreement” whereby they agreed to represent the best interests of the public, not privately owned corporations, as well as defend the basic principles of freedom and other similar God given rights, yet have failed repeatedly to do so when given ample opportunities. As a result, we the people request of all relevant organizations that they hand over any and all private information pertaining to said Government officials for review by the people.

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