Second online spying bill goes to committee

Computer
Image shared under CC license by Ministerio TIC Colombia

Our online privacy rights are coming under intense scrutiny this month, as two bills threaten to expand the ability of law enforcement agencies (and others!) to access our personal information without a warrant. The highly unpopular C-13 is currently making its way through the Senate, and facing fierce opposition. Meanwhile Bill S-4, the Digital Privacy Act which amends the federal private sector privacy law (PIPEDA), was referred to committee before its second reading, opening it to much more extensive amendments than is normally the case.

This is important because as it currently stands, there are some serious questions about the constitutionality of this bill. Its referral to the House of Commons Standing Committee on Industry, Science, and Technology provides a unique opportunity to fix these problems.

The question of whether S-4 is unconstitutional stems from a landmark Supreme Court of Canada ruling in R. v. Spencer in June of this year. Currently, section 7(3)(c.1)(ii) of PIPEDA allows Internet Service Providers to voluntarily disclose metadata to a government institution if it has “made the request for the purpose of law enforcement and has stated its “lawful authority” for the request.” So the question considered in the SCC case, and which makes S-4 of questionable constitutionality, is what constitutes “lawful authority” to obtain metadata?

The court ruled that, contrary to the statements by a number of government officials and lawyers, the collection of IP address information and other metadata does constitute a “search,” and a person does have a reasonable expectation of privacy online. This means that a “simple request” from law enforcement is not enough; a warrant is required in order to allow ISPs to give that information to the authorities.

And this is where Bill S-4 runs into trouble, because it 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” (emphasis added). This includes law enforcement and other state agencies, but it also allows non-government organizations (or even individuals) to take advantage of warrantless access. This flies in the face of the SCC ruling.

Professor Michael Geist has highlighted the huge range of uses this new exception might have; from copyright conflicts to defamation claims, commercial battles, and consumer disputes. Protections that have been developed by the courts to create oversight and approval procedures would be replaced by the provisions of S-4 , which give immunity to ISPs that hand over our personal information without being shown a warrant, and without us ever knowing what they did.

There are several good things about S-4 (particularly the breach notification requirements) but the expansion of private organizations’ ability to disclose our personal information is not one of them. We want to see the Committee take advantage of its expanded scope to amend the bill and make it into a real improvement to PIPEDA.

Concerned about online spying? Join the call for sober second thought

Write a letter to the editor about C-13Online Spying Bill C-13 has already passed the House of Commons and will soon face a final vote in the Senate. But the Supreme Court of Canada has ruled that large parts of C-13 are unconstitutional. If passed, the Bill will face legal challenges and waste millions of taxpayer dollars. The Senate claims to be the place where new laws can receive “sober second thought” – and if ever a bill needed a sober rethink, it’s this one.

Opposition to Bill C-13 is huge and growing; it’s faced criticism from across the board, including from the government’s own supporters. We need to let the government and the Senators know just what we think of this resurrection of Vic Toews’ aborted Bill C-30, so our partners at OpenMedia.ca have launched a simple Letter to the Editor tool to help you get your thoughts on Bill C-13 published in your local newspaper.

Read more of what FIPA has to say about this draconian bill here and here.

Don’t delay: let Canada’s senators know you expect a critical review of this bill.

Work with us to shape a pro-privacy action plan that addresses government’s stark privacy deficit

Privacy Plan

FIPA has teamed up with OpenMedia and other members of the Protect Our Privacy Coalition to launch a pro-privacy crowdsourcing initiative.

This week the highly controversial online spying Bill C-13 passed the House of Commons, despite concerns that the Supreme Court of Canada Spencer ruling likely makes the legislation unconstitutional. This also follows a year of worrying revelations about the activities of Canada’s spy agency CSEC.

We’ve seen in the past that the best way to combat these overzealous and draconian surveillance efforts is to develop our own solutions that address privacy concerns. C-13 is hugely unpopular, and has received criticism from a range of political standpoints. This crowdsourcing effort will give you the opportunity to have your say as well.

The crowdsourcing tool will allow users to give input on their top privacy concerns, and the policies they would like to see developed. This input will then be analyzed and used to create a set of key recommendations for policy-makers in the new year.

Groups supporting the launch of the tool include: Canadian Journalists for Free Expression, Free Dominion, the International Civil Liberties Monitoring Group, and the Privacy and Access Council of Canada. You can take part by using the crowdsourcing tool at https://privacyplan.ca/

Huge win for privacy in Supreme Court, federal justification for online spying unconstitutional

Provincial private sector privacy laws will also be affected

The Supreme Court of Canada has blown away the underpinnings of the federal government’s online spying legislation, but the effects will be much wider.In a decision handed down last week, the Court found that contrary to the statements by a number of government officials and lawyers, the collection of IP address information and other metadata is a search, there is a reasonable expectation of privacy in the information being collected and that a warrant is required in order to allow Internet Service Providers to give that information to the authorities.This means the government’s proposed amendments to the Personal Information Protection and Electronic Documents Act (PIPEDA) Bill S-4, and the cyberbullying/online spying bill (C-13) are unconstitutional and will have to be rewritten.

The government and security services have justified their current and future mass surveillance by misinterpreting the meaning and importance of ‘metadata,’ despite several privacy experts and Commissioners pointing out that this type of data can reveal detailed personal information about Canadians including their medical history, political leanings, religious beliefs, sexual orientation, and financial state. The Supreme Court has now shown the critics were right.

Provincial privacy laws have similar provisions allowing for collection of personal information without consent, and those provisions are now of questionable constitutionality as well.

In a letter sent before the Supreme Court ruling, BC Information and Privacy Commissioner Elizabeth Denham highlighted concerns about the provincial law having similar problems to the federal legislation:

“The proposal in Bill S-4 has been the focus of some concern and sheds light on privacy issues in relation to the analogous provision in PIPA. Given the extent that personal information is available to some organizations in today’s digital world, there may be unintended consequences in providing authorization for personal information-sharing between organizations under such broad conditions.”

BC and Alberta both have their laws under review, and it is now imperative that these powers be scaled back.

FIPA has been active in this fight going back to the original lawful access proposals brought out at the turn of the century. Click on the links below for some of what we have been saying recently about this and other important privacy issues.

CBC clip

Joint op ed with BCCLA in Times Colonist