After a Supreme Court ruling that Canadians have a right to privacy with IP addresses and other online data, the Conservative government is staying silent on whether it will amend bills that expand the sharing of that kind of private information.
Friday’s court ruling comes as the Conservative government pushes ahead with Bill C-13 and Bill S-4, each of which has privacy implications and is under fire from academics, lawyers and privacy watchdogs.
(How are Canada’s privacy laws about to change? Read The Globe’s easy explanation)
Canada’s Privacy Commissioner, Daniel Therrien, called the decision a “seminal” ruling and urged MPs to “carefully consider the implications” in consideration of C-13 and S-4.
Among many criticized provisions, C-13 offers immunity to private companies – such as major telecommunications companies – that hand over subscriber information or other data voluntarily to police. The telecom industry got 1.2-million such requests from government agencies in 2011. S-4, meanwhile, overhauls the rules for voluntary data sharing between private companies, and critics have warned it will lead to more sharing of private information without judicial oversight.
In Question Period on Friday, shortly after the release of the decision, the government was under fire from the opposition.
“Police must have a mandate. This new defeat [from the court] underscores the fact that all too often [the government’s] approach is unconstitutional. Will the Conservatives amend bills on electronic monitoring in order to comply with the Supreme Court decision?” NDP House Leader Peter Julian said.
Conservative MP Bob Dechert, who is the parliamentary secretary to Justice Minister Peter MacKay, sidestepped the question.
“We just received the decision and we will review it. We always respect the work of the court. We will continue to crack down on cyberbullies and online criminals to keep children and vulnerable communities safe in Canada,” Mr. Dechert said, an apparent reference to C-13, which was tabled as an anti-cyberbullying bill but also includes a broad range of new police surveillance powers.
Mr. Therrien said the ruling has “important implications” to Bill C-13 in particular.
“In its decision today, the Supreme Court of Canada recognized that anonymity on the internet is a critical component of informational privacy,” Mr. Therrien said in a statement released by his office Friday. “… In particular, [the ruling] confirms that an immunity clause that protects a person who voluntarily discloses personal information to police does not in itself constitute any ‘lawful authority’ for the state to obtain that information.”
The justice committee, on which Mr. Dechert serves, voted down nearly every proposed amendment to C-13 this week, including those that would have reined in warrantless sharing of private information.
The ruling doesn’t have any direct, immediate impact on Bill S-4 and C-13, Halifax-based privacy lawyer David Fraser said Friday, but will lend weight to critics who say government needs to do more to protect online privacy in the bills.
“The Supreme Court of Canada is saying in black and white you have an expectation of privacy [online]. … Does it kind of throw out part of S-4 and C-13? Not at all. But it certainly adds to the ammunition critics have had with respect to a number of the provisions, mainly in C-13 and also in S-4,” Mr. Fraser, who testified to House and Senate committees considering the bill, said in an interview.
In particular, Mr. Fraser said the ruling will back calls from critics – including Mr. Therrien – to require a higher threshold of evidence to get new warrants created by Bill C-13. Under the bill, many of the warrants require police prove only they have reasonable grounds to “suspect” a crime has taken place, or will. Critics have called for a higher threshold, of reasonable grounds to “believe,” for the warrants.
The government has argued that information received by the warrants, such as online transmission data, is comparable to information found in a phone book and that the lower threshold is therefore sufficient.
The ruling tells the government “this information is more sensitive than you thought, than you put forward. Is ‘reasonable grounds to suspect’ the right threshold? Probably not,” Mr. Fraser said. “… It adds ammunition to those who say this is more than phonebook data.”
Bills C-13 and S-4 remain in the House and Senate, respectively, and aren’t expected to become law before fall.