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Privacy commissioner nominee Daniel Therrien arrives at a Commons access to information committee in Ottawa on Tuesday June 3, 2014. (Sean Kilpatrick/THE CANADIAN PRESS)
Privacy commissioner nominee Daniel Therrien arrives at a Commons access to information committee in Ottawa on Tuesday June 3, 2014. (Sean Kilpatrick/THE CANADIAN PRESS)

Conservatives must review privacy bills after top court's ruling, watchdog says Add to ...

Canada’s privacy watchdog is calling on the Conservative government to consider amending a pair of controversial bills after a Supreme Court ruling that online data is deserving of some privacy protection – a ruling the watchdog says makes a key plank of one particular bill “meaningless.”

In an interview with The Globe and Mail, newly appointed Privacy Commissioner Daniel Therrien said Tuesday that Bill C-13 and S-4 should be reviewed in light of last week’s court ruling that online subscriber information ‎is generally considered to be private, because each bill allows that type of information to be shared.

Globe and Mail Update Jun. 18 2014, 11:34 AM EDT

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C-13 gives companies, such as telecommunications giants, immunity for handing private subscriber information voluntarily to police. S-4, meanwhile, overhauls rules around how private companies can share client information with each other.

(How are Canada’s privacy laws about to change? Read The Globe’s easy explanation)

“All of the discussion in and around C-13 around how sensitive subscriber information is, and whether it deserves privacy protection under law – in this case, under the Charter – has now been put to bed. The Supreme Court agrees that this is sensitive information, that it is entitled to constitutional protection. That is a huge clarification from the Supreme Court,” Mr. Therrien told the Globe during an interview at the Privacy Commissioner’s office in a Gatineau, Que., government building.

“...At a minimum, I would say the immunity clause in Bill C-13 becomes essentially meaningless as authority for [telecommunications companies] to share information with law enforcement. So [government] may or may not wish to amend the clause in question. It’s either meaningless or it would have to be amended to more directly accord with what the Supreme Court is saying.”

Mr. Therrien likened subscriber information, such as a name associated with a computer’s IP address, to information obtained during a search of someone’s home – at odds with the suggestion by some Conservative MPs that the basic subscriber information was on par with what’s found in a phonebook.

“In the old days before the Internet and new technologies, police could not – cannot – enter a house and search for documents without the appropriate court authorization. And what the court is saying here, in [this case], I think is that personal information of a sensitive nature that people put online should be treated in a similar way and that law enforcement agencies should have proper lawful authority, normally a warrant, before they get access to that information,” Mr. Therrien said.

Government, however, has only said it will review last Friday’s ruling in what’s known as the Spencer case, and senators on Monday passed Bill S-4 after the Government Leader in the Senate, Claude Carignan, dismissed suggestions the court ruling would affect the bill.

“On the contrary, the pre-study shows that the [court] decision has no impact and confirms our view on the matter,” Mr. Carignan said Friday in speaking about the bill, before deferring a vote until Monday. “…We are not doing this because we think this changes the bill – quite the contrary,” Mr. Carignan added. S-4 now needs to pass the House of Commons, where it could be amended.

Mr. Therrien – whose predecessor, interim commissioner Chantal Bernier, largely supported S-4 – took a different view from Mr. Carignan, saying the Supreme Court ruling will affect the bill.

“That would be an issue I think parliamentarians should look to,” he said, asked about S-4. “Because clearly, again, the starting point of the Supreme Court’s analysis is subscriber information linked to sites people visit is sensitive information and deserves a high level of protection from a privacy perspective. That is true for sharing information with law enforcement, but that is equally true for sharing information between private companies. So yes, I think there’s certainly an issue to look at by parliamentarians on this. Now, that being said, S-4 has many positive features that are in line with recommendations made by this office before,” he said.

Mr. Therrien was nominated on May 28 as Canada’s privacy watchdog, and confirmed eight days later. The NDP opposed the nomination, saying his career as a government lawyer left him too close to government data-collecting programs to be an effective watchdog. However, Conservatives, as well as Liberals in the Senate and the House of Commons, supported Mr. Therrien’s appointment.

It was revealed Mr. Therrien was among the final two candidates, and that some privacy experts’ perceived frontrunners didn’t make the final cut. On Tuesday, Mr. Therrien said he applied for the job late last year after the resignation of Jennifer Stoddart, and was told all along he was on the list of candidates.

“The idea I was not one of the top candidates is inconsistent with what I’ve been told. I was there at every step, including the last one,” he said. Asked about the criticism of his appointment, he replied: “Obviously, I was not pleased, but I think I will leave it at that.”

Mr. Therrien wasted little time in the job – his third official day of work, June 10, included an appearance before a government committee where he criticized Bill C-13 and urged government to amend it. The calls were ignored by Conservatives on the committee, which later voted down all proposed amendments, except for one minor one requiring the law be reviewed in seven years.

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