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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In recent years, it has become fashionable to argue that Canadians no longer care about their privacy. Supporters of this position note that millions of people voluntarily post personal information and photos about themselves on social media sites, are knowingly tracked by Internet advertising giants, and do not opt-out of “targeted” advertising from telecom companies. Yet if the past few months are any indication, it is not Canadians that have given up on privacy. It is the Canadian government.
My weekly technology law column (Toronto Star version, homepage version) notes the public response to the tidal wave of stories regarding widespread surveillance, the 1.2 million government requests to telecom companies for customer information, and the growing number of security breaches suggest that many Canadians are deeply concerned about the protection of their privacy. However, many feel helpless in the face on recent revelations and wonder whether the government is prepared to tighten privacy rules and establish stronger oversight.
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The federal government created the Office of the Federal Ombudsman for Victims of Crime in 2007 to ensure that victims concerns and voices were heard. Last week, Sue O’Sullivan, the current ombudsman, appeared before the committee studying Bill C-13, the lawful access/cyberbullying bill. Ms. O’Sullivan, a former Deputy Chief of Police for the Ottawa Police Service, confirmed what has become increasingly obvious. Despite the government’s expectations that victims and their families would offer strong support for Bill C-13, that community is split on the bill:
I would like to touch briefly on what appears to be the most controversial aspects of the bill, those which relate to investigative tools and the balance of powers and privacy. Privacy matters and technical investigative tools do not generally fall within my mandate. It is worth noting that among the victims we have spoken to, there is no clear consensus on the element of the bill. I have spoken with victims who very much support further measures to assist law enforcement in their investigation, and find the tools included in this bill to be balanced and necessary. I have, like you, heard opposing points of views from victims who don’t wish to see these elements of the bill proceed for fear they will impinge on Canadians’ privacy rights. From my own perspective, I would say that there is a balance to be struck, and the dialogue that Canadians are having is a needed and valuable one.
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