My weekly Law Bytes column (Toronto Star version; freely available hyperlinked version) focuses on comments last week from Prime Minister Paul Martin that the "question of civil rights is first and foremost in our minds" as the government prepares to introduce the lawful access initiative.
I note that while Canadians undoubtedly want to take Mr. Martin at his word, the state of Canadian privacy reveals another story. In the days preceding Mr. Martin’ s comments, the Privacy Commissioner of Canada released two annual reports that paint a bleak picture of Canadian privacy – illustrating that Canadian policies are ill-equipped to deal with emerging technologies and cross-border trade practices. When combined with the lawful access initiative, it is clear that a robust privacy framework requires action rather than rhetoric.
Lawful access is the most troubling development on the short-term horizon. The term itself unsettles many; it sounds benign while its purpose is not – the legislation would grant new, intrusive powers of surveillance to law-enforcement authorities without matching judicial oversight.
If lawful access presents the most immediate privacy threat, the Privacy Commissioner’ s annual reports – one for each of Canada’ s federal privacy laws – leaves little doubt that this is only the tip of a dangerous iceberg. The Commissioner’ s concerns include inadequate statutory enforcement powers, the challenges created by new technologies such as radio frequency identification devices (RFIDs), and a cross-border trade environment that often results in the transfer of personal information across borders with limited accountability and oversight.
Given these challenges, it appears that Canada is facing a privacy crisis that can only be resolved by instituting statutory reform that creates adequate privacy safeguards. If the Prime Minister of Canada is serious about prioritizing civil rights, then decisive action must follow his strong words.