The government today reversed course on its ill-advised anti-privacy measures in Bill C-2, introducing a new border bill with the lawful access provisions (Parts 14 and 15) removed. The move is welcome given the widespread opposition to provisions that would have created the power to demand warrantless access to information from any provider of a service in Canada and increased the surveillance on Canadian networks. The sheer breadth of this proposed system was truly unprecedented and appeared entirely inconsistent with Supreme Court of Canada jurisprudence and the Charter of Rights and Freedoms. That was the immediate reaction when the bill was tabled in June (my posts here, here, here, here, here, here, and here. Law Bytes podcasts on the topic here, here, and here) and there was never a credible response forthcoming from government officials. Indeed, if anything, meetings with department officials made plain that this was an embarrassingly rushed, poorly drafted piece of legislation that required a reset.

Good news aside, this embarrassing episode merits a few comments. First, the government has badly burned public trust and left the distinct impression that privacy is not a priority. It would be nice to think that it came to its senses on the privacy implications of its proposal. But the more likely rationale was that in a minority government situation, it could not find a partner to get the bill passed in its original form. The Conservatives made their opposition clear as did the NDP. The Bloc was supportive of some of the border measures, but may have balked at the privacy rules. Without support from any party, the bill would have required significant changes to get it passed.

So why introduce it in the first place? This ultimately seems like the government was looking to move quickly to get border rules passed under the auspices of a “crisis” with the United States and appended the lawful access rules in the hope that it would be rushed through without careful study before anyone noticed. That would explain the poor drafting, the lack of evidence for the changes, the limited references to lawful access when the bill was introduced, and the shameful Ministry of Justice Charter statement that made a mockery of a process that is supposedly there to provide assurances about Charter compliance. When the bill did not get on a fast track and the opposition mounted, the government looked for an off-ramp which will mean mothballing Bill C-2 (it will apparently sit untouched for the life of the government) and moving ahead with a slightly slimmed down Bill C-12.

Second, lawful access may have been pulled for the moment, but this is zombie like legislation that always seems to return. Successive governments – both Liberal and Conservative – have tried to bring in lawful access, only to be stymied by the Charter of Rights and Freedoms (and Supreme Court decisions such as Spencer and Bykovets) and the pervasive sense that this has long been evidence-free policy making. Law enforcement would unsurprisingly like to make it easier to obtain personal information during an investigation. But court oversight is there for a reason and repeated attempts to circumvent it represent a serious risk to Canadians’ privacy.

Assuming there is still an appetite for these kinds of laws, the starting point must be actual evidence of a problem. Transparency data from the major telecom companies indicates that data on hundreds of thousands of accounts is disclosed to law enforcement every year. That would suggest that the current system is working pretty well. If there is evidence to the contrary, bring it. If not, give up this decades old dream of warrantless access to information on the false pretense that what is being sought is harmless, non-private information.

Third, the government desperately needs to rethink its approach to privacy. Bills C-2, C-4, and C-8 all raise privacy concerns. Privacy protective laws – such as a new version of the old Bill C-27 – are nowhere to be seen. Privacy safeguards in Bill C-11 were inadvertently deleted. Meanwhile, government officials defended the indefensible by backing an obviously flawed lawful access proposal. That may be their job, but it will now be much harder to trust the government and its officials on future bills and policies with privacy implications. Canadians spoke out loudly against warrantless access and the dangers of Bill C-2. Reversing on lawful access must be the first step in a concerted, serious effort to prioritize privacy in Canada.