DSC_0110 Minister of Canadian Heritage and Official Languages James Moore by Heather (CC BY 2.0) https://flic.kr/p/6BbzwP

DSC_0110 Minister of Canadian Heritage and Official Languages James Moore by Heather (CC BY 2.0) https://flic.kr/p/6BbzwP

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Why the Digital Privacy Act Will Expand Personal Information Disclosure Without Court Oversight

My column this week on warrantless access to personal information under Canadian law noted that Bill S-4, the Digital Privacy Act, will expand the likelihood warrantless disclosures between private organizations. As I posted recently:

Bill S-4 proposes that:

“an organization may disclose personal information without the knowledge or consent of the individual… if the disclosure is made to another organization and is reasonable for the purposes of investigating 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 and it is reasonable to expect that disclosure with the knowledge or consent of the individual would compromise the investigation;

Unpack the legalese and you find that organizations will be permitted to disclose personal information without consent (and without a court order) to any organization that is investigating a contractual breach or possible violation of any law. This applies both past breaches or violations as well as potential future violations. Moreover, the disclosure occurs in secret without the knowledge of the affected person (who therefore cannot challenge the disclosure since they are not aware it is happening).

Yet despite the plain language of the provision and the concerns from the Privacy Commissioner of Canada, Industry Minister James Moore’s office continues to insist that the concerns are unfounded. In response to the column, Jake Enwright, Moore’s press secretary responded with a tweet that the concerns were “false.”

Enwright Tweet https://twitter.com/JakeREnwright/status/528566471623204864?cn=cmVwbHk%3D

Enwright Tweet https://twitter.com/JakeREnwright/status/528566471623204864?cn=cmVwbHk%3D

I debunked many of the government claims on S-4 in this post. With respect to Enwright’s comment, it bears repeating that the Privacy Commissioner of Canada has stated:

we believe that the grounds for disclosing to another organization are overly broad and need to be circumscribed, for example, by defining or limiting the types of activities for which the personal information could be used

As for the impact of S-4 on warrantless disclosures, the bill plainly expands the ability of organizations to voluntarily disclose personal information without a warrant or court oversight. While some organizations will decline to voluntarily disclose such information, when combined with Bill C-13’s grant of full immunity for voluntary disclosures, it seems likely that others will provide subscriber information without a warrant or court oversight.  That will lead to an increase in warrantless disclosures. Simply put, government claims that such concerns are false do not stand up to even mild scrutiny.

6 Comments

  1. Michael Heroux says:

    This is a very very serious issue. I am watching them debate the bill right now. This government in power is a circus. I am waiting for the miniture car to pull up and unload it’s cargo of unlimited clowns out of the little vehicle. This is not a clown show like they are portraying. There are people being murdered because they are poor or disabled or both. I have lost some of my best friends ever. My best friends have been murdered. Are they scanning the welfare and disability databases and targeting us like that. Shame on them. They will be judge by their creator in the end. Thanks for reading. Follow the money.

  2. Maynard Krebs says:

    “for the purposes of investigating 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** and it is reasonable to expect that disclosure with the knowledge or consent of the individual would compromise the investigation;”

    Sounds about just the sort of thing we, the people, need in order to investigate the Conservative Party of Canada leading up to the next federal election.

  3. David Allsebrook says:

    Consider the final qualification, “where it is reasonable to expect that disclosure with the knowledge or consent of the individual would compromise the investigation”. How often will a disclosing company be satisfied that this applies? If the discloser gets it wrong they are liable. I would hope the Courts attach a Anton Pillar type rigour to interpreting this provision.

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