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