The Supreme Court of Canada’s Spencer decision is still only a few days old, but it has become clear that the ruling has left the government’s privacy and lawful access strategy in tatters. I’ve posted earlier on how the decision – which held that Canadians have reasonable expectation of privacy in their subscriber information and that voluntary disclosure of such information to the police constitutes an unlawful search – blows away the government’s plans for Bills C-13 and S-4 by contradicting longstanding government policy positions.
While there are options for the government to establish reforms that are consistent with the court ruling and that would grant police the access they say they need, government ministers have instead adopted a rather bizarre response of saying anything, no matter how inconsistent with prior positions, the court’s analysis, or public comments from authorities such as the Privacy Commissioner of Canada. There is admittedly a track record for this: Conservatives have dismissed privacy concerns from Carole Todd, the Boys and Girls Club of Canada, the Privacy Commissioner of Canada, and many more. Further, the Conservative leader in the Senate claims Spencer has “no impact whatsoever” on Bill S-4.
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In the fall of 2007, Public Safety Canada quietly launched a lawful access consultation that envisioned mandatory disclosure of customer name and address information. After I posted the consultation online, the department claimed that the consultation was not secret and then-Public Safety Minister Stockwell Day suggested that the document actually contained old Liberal wording. Day promised not introduce legislation compelling disclosure without a court order, a commitment that Peter Van Loan, the next Public Safety Minister, rejected when the Conservatives introduced their first lawful access bill in 2009.
This third post on Spencer (case summary, comparison with government talking points) begins with some lawful access history because it is important for understanding what might come in the aftermath of the Supreme Court of Canada’s evisceration of the government’s arguments on voluntary disclosure of personal information in the Spencer decision. The starting point for the voluntary disclosure provisions in Bills C-13 and S-4 can be traced back to the 2007 consultation. Law enforcement complained about inconsistent access to customer name and address information and sought new provisions to make such disclosure mandatory (PIPEDA permitted voluntary disclosure but did not require it).
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For weeks, the government has been claiming that the provisions in Bill C-13 and S-4 were compatible with the law. Last week, the Supreme Court of Canada disagreed, issuing its decision in Spencer on the legality of voluntary warrantless disclosure of subscriber information. The court ruled that there was a reasonable expectation of privacy with subscriber information and that voluntary disclosure to police may constitute an illegal search.
The court’s comments are particularly striking when contrasted with claims from government ministers, MPs, and officials, who have defended C-13 and S-4 at committee. Consider what the court said about subscriber information:
in the totality of the circumstances of this case, there is a reasonable expectation of privacy in the subscriber information. The disclosure of this information will often amount to the identification of a user with intimate or sensitive activities being carried out online, usually on the understanding that these activities would be anonymous. A request by a police officer that an ISP voluntarily disclose such information amounts to a search.
In contrast, Bob Dechert, the Parliamentary Secretary to the Minister of Justice, argued at committee that subscriber information was similar to a licence plate on a car:
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For the past several months, many Canadians have been debating privacy reform, with the government moving forward on two bills: lawful access (C-13) and PIPEDA reform (S-4). One of the most troubling aspects of those bills has been the government’s effort to expand the scope of warrantless, voluntary disclosure of personal information.
Bill C-13 proposes to expand warrantless disclosure of subscriber information to law enforcement by including an immunity provision from any criminal or civil liability (including class action lawsuits) for companies that preserve personal information or disclose it without a warrant. Meanwhile, Bill S-4, proposes extending the ability to disclose subscriber information without a warrant from law enforcement to private sector organizations. The bill includes a provision that allows organizations 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. I appeared before both committees in recent weeks (C-13, S-4), but Conservative MPs and Senators were dismissive of the concerns associated with voluntary disclosures.
This morning another voice entered the discussion and completely changed the debate. The Supreme Court of Canada issued its long-awaited R. v. Spencer decision, which examined the legality of voluntary warrantless disclosure of basic subscriber information to law enforcement. In a unanimous decision written by (Harper appointee) Justice Thomas Cromwell, the court issued a strong endorsement of Internet privacy, emphasizing the privacy importance of subscriber information, the right to anonymity, and the need for police to obtain a warrant for subscriber information except in exigent circumstances or under a reasonable law.
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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.
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