Facebook: The privacy saga continues by Ruth Suehle for opensource.com (CC BY-SA 2.0)

Facebook: The privacy saga continues by Ruth Suehle for opensource.com (CC BY-SA 2.0)

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Blown Chances, Bogus Claims & Blatant Hypocrisy: Why Yesterday Was a Disastrous Day for Canadian Privacy

Bills C-13 and S-4, the two major privacy bills currently working their way through the legislative process, both reached clause-by-clause review yesterday, typically the best chance for amendment. With Daniel Therrien, the new privacy commissioner, appearing before the C-13 committee and the sense that the government was prepared to compromise on the controversial warrantless disclosure provisions in S-4, there was the potential for real change. Instead, the day was perhaps the most disastrous in recent memory for Canadian privacy, with blown chances for reform, embarrassingly bogus claims from the government in defending its bills, and blatant hypocrisy from government MPs who sought to discredit the same privacy commissioner they were praising only a few days ago.

The blown chance for reform arose at the Senate committee conducting its review of Bill S-4.  The review of the bill was very short – I appeared before the committee last week, but very little time was devoted to a bill that was years in the making. Liberal Senator George Furey proposed an amendment to remove the most controversial provision in the bill that would massively expand the scope of voluntary, warrantless disclosures by allowing companies to reveal customer information to other companies. There appeared to be sufficient support for the amendment since one Conservative Senator supported it. However, when the chair of the committee, Liberal Senator Dennis Dawson, abstained, the committee was left deadlocked at 4 in support and 4 against. Dawson tried to change his vote, but it was ruled out of order. The government was likely ready to lose on the issue, but the amendment was defeated and with it, the best chance to remove the provision.

In fact, Industry Minister James Moore appears to have assumed that the amendment was adopted at committee. Later in the afternoon during Question Period, Moore responded to a question about the expansion of warrantless disclosure in Bill S-4 by stating “we dealt with this issue at the Senate. We adopted an amendment at the Senate committee and it will come to the House of Commons where we will move forward.” In other words, the amendment was a done deal and the committee blew it.

The bogus claims were strewn over both committees. Conservative Senator Don Plett argued that the Furey amendment would impede self-regulating professional associations such as lawyers and doctors from investigating its own members. The reality is that the law currently permits these investigations with regulations that cover dozens of such associations. Bill S-4 seeks to expand the disclosures to anyone, but Furey’s amendment was clearly aimed at stopping the expansion of voluntary warrantless disclosures, not rolling back those current powers.

Meanwhile, at the C-13 committee, government MPs were using the most incredible justifications for problematic provisions in the bill. Responding to concerns about a provision that expands voluntary warrantless disclosure to a wider range of public officials, Conservative MP Bob Dechert argued that the expanded approach was needed to allow fisheries officers to request data from telecom companies and to give military police the power to investigate soldiers overseas if they send cyberbullying images.

Most troubling was the sheer hypocrisy taking place at both committees. Last week, Treasury Board President Tony Clement described Therrien as “an exceptional candidate” in the House of Commons, while Prime Minister Harper called him an “expert.” That exceptional candidate and expert told the committee that Bill C-13 should be split, that a higher threshold should be used for metadata warrants, and that immunity for voluntary disclosures of personal information was likely to lead to a rise in such disclosures. With those criticisms in hand, Conservative MP Kyle Seeback was no longer impressed with Therrien’s expertise, bizarrely asking if he had ever been a police officer or a crown attorney. Those comments came as part of a series of aggressive questions that surprised many observers.

Yet while Conservative MPs were dismissing any criticism of the bill and indicating that they would side with police testimony, consider that the police testimony involved representatives who were not even fully aware of the substance of the bill.  For example, when the Ontario Provincial Police appeared before the committee last month, their representative stated:

Under the proposed legislation, ISPs will be compelled to provide this information in a timely fashion and on a consistent basis. Access to this information will be strictly controlled and limited to law enforcement officials who would be fully trained in these procedures and subject to auditing and/or reporting processes. The outcome will be that the police can quickly and consistently gain access to information that makes a difference to our effectiveness in investigating and preventing criminal activity and victimization.

The problem with the testimony is that the refers to an old bill, not Bill C-13. This bill does not have mandatory disclosure provisions and the voluntary provisions expand the scope of who many have access to personal information. So Conservative MPs side with police testimony that did not accurately describe the substance of the bill.

Moreover, at the Senate committee, the only amendment to Bill S-4 that was approved was proposed by Conservative Senator Plett, who weakened police powers as part of the data breach disclosure rules. Plett and the Conservative senators removed a provision that would have allowed police to request delayed notification to the public if the notice might impede a criminal investigation. That seems like a sensible provision where police are pursuing a criminal hacking or data theft operation, yet it was the Conservatives that removed the provision.

That provided a fitting conclusion to a disastrous day for Canadian privacy in which a Senate committee blew the best chance for privacy reform and the government made it clear it thinks the privacy commissioner is expert except when he disagrees with them, that police concerns trump public and privacy concerns except when they don’t, and the military has a cyberbullying problem that necessitate warrantless access to personal information.

 

13 Comments

  1. Disgusted Canadian says:

    Absolutely disgusting!

  2. Peter MacKay says:

    It’s time for a new ISP
    Someone needs to start a new ISP that doesn’t retain records, doesn’t cooperate with government/police requests, and provides built in VPN service.

  3. Drivebycommentor says:

    sad day for democracy
    How can we have an open a free society with big brother breathing over your shoulder?

    You know this is going to be abused as the biggest data gathering operation that the country has ever seen.

    Maybe they were already doing this but they need this law to cover their bases.

    SHAME ON Dennis Dawson for the biggest fail in Canadian political history!

    SHAME on the Conservative party for turning Canada into a police state!

  4. Curmudgeon says:

    So, it looks like Teksavvy was ahead of its time when it refused to stand up for its customers by challenging the adequacy of Voltage’s evidence in its mass infringement (trolling?) expedition and leaving its customers in the hands of a law school clinic. No wonder the Government thinks that nobody really cares any more… Or, maybe Teksavvy’s failure was the last straw.

  5. Drivebycommentor says:

    VPN
    >> Someone needs to start a new ISP that doesn’t retain records, doesn’t cooperate with government/police requests, and provides built in VPN service.

    I think that this law changes the “no records or logs thing”. I think that a VPN will be required to keep logs and records for Big Brother Harper’s uses.

  6. Devil's Advocate says:

    Who’s really surprised?
    Surely by now, it’s common knowledge that the Legislature is just theatre.

  7. Re: …
    Um, TekSavvy’s lawyer did challenge the adequacy of Voltage’s evidence, they helped ensure create new safeguards against speculative billing, and they still haven’t released anyone’s information at all. What “failure” are you talking about, Curmudgeon?

  8. Throwing in the towel
    Well, considering where this is all going I’m done with my blog. Would rather make sure that my sources stay secure, than to speak out against government to find these sources and myself penalized as a result. Until these matters are resolved within the courts or diplomatically, I’m done, and I have a family to take care of:

    http://jkoblovsky.wordpress.com/2014/06/12/last-blog-post/

  9. @Curmudgeon
    Coming from my political sources, the situation with Teksavvy a year ago and lack of public outrage, may have “helped” develop the situation we are in now with these two pieces of legislation. If Teksavvy was publicly humiliated on the privacy issues, I highly doubt we would be seeing such a push with these types of legislation. Right or wrong, as a result government thinks it can push through legislation like this because there’s not enough backlash on the privacy issues. They were watching the situation with Teksavvy very, very closely last year, as they were with my blog. I think the legislation speaks for itself regarding S4 and copyright trolls, just how closely they were watching the situation with Teksavvy.

    The lack of public back lash on Teksavvy created an opportunity for government to push through an agenda they put on hold after the #tellviceverything protests. This current political situation is exactly what happens when those who are advocating for the public interest end up advocating for private industry instead. Canadians need to take a very serious look at home much private money is being thrown around to so called “consumer advocacy” groups to control public opinion. This will be the very last thing I post on the comments on this blog.

  10. pat donovan says:

    the well
    is poisoned. Freedom of speech, privacy and property…
    all gone to the highest bidder, or best connected one?

    well well well… who’s surprised?

    And corp on corp espionage attacks are next?

  11. Jim Harvie says:

    Ms
    Punch a politician. Feel up a funder. We’re Canadian, so let’s all get passive aggressive on their ass.

  12. Hahaha! Anyone Expecting Different, Was Delusional!
    Seriously, with the power players behind this bill? Any opposition would have ended up underground in a secret courtroom labled a “terrorist sympathiser”. Think the people would back them up? Authority, wheather it be a corporate entity, a cop or government representative, is the majority of the people’s absolute God Almighty to be obeyed without question.
    Puppets…. the majority wanted a “Saddam Hussein” at the helm… the people got ‘em!
    This isn’t Hollywood – evil wins here in real life. Go back to your TV’s and drugs. John Q. Public can’t handle “the red pill”.

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