We need a new approach to tackle Canada’s growing privacy deficit

This piece was originally published in the July-August 2014 edition of the CCPA Monitor.
Canadians everywhere have a new reason to thank the Supreme Court after a historic judgment on June 13 threw government spying plans into chaos. The justices ruled unanimously, in line with privacy officials and watchdogs, that warrantless government and police requests for disclosure of private online information are unconstitutional.

The decision means government agencies can no longer ask telecom providers (e.g. Bell, Telus, Quebecor) to hand over the private information of Internet users without first getting a warrant or court order. As we learned earlier this year, that kind of snooping happens quite a lot; of more than a million requests in one year alone (2011), government agencies got the information they wanted on more than 785,000 people, in most cases without a warrant.

The Supreme Court decision also means the government will have to go back to the drawing board with controversial and unpopular online spying legislation that would make warrantless online spying the norm. The question is, will they listen? The record shows this Conservative government just doesn’t get it when it comes to privacy.

1. Bill C-13: Last fall, Justice Minister Peter MacKay tabled a new online spying bill (C-13) that appeared to be lifted in large part from former MP Vic Toews’ earlier failed effort in Bill C-30. That legislation was defeated after 150,000 Canadians spoke out against it. Where Toews justified government spying by claiming it was the only way to stop child pornography, MacKay has reframed the invasive proposals as necessary to tackle cyberbullying.

There are, indeed, a couple of pages in Bill C-13 containing sensible measures to help protect bullied children. But the rest (of its more than 60 pages) includes proposals to significantly expand the state’s capacity to spy on Canadians. The new law would weaken the warrant standard by which state authorities can obtain revealing metadata on Canadians (e.g. an IP address, which can be used to follow online activity). C-13 would also grant legal immunity to telecom companies that hand our private information to the government without a warrant—precisely what the Supreme Court has just ruled unconstitutional.

2. Bill S-4: Bill C-13 isn’t the only privacy-undermining legislation this government is trying to push through. The Digital Privacy Act (Bill S-4) would enable telecom providers to pass our personal information to pretty much any private sector entity that asks for it. Experts say this would open the door to U.S.-style copyright trolling (i.e. overzealous private lawsuits against perceived copyright infringement) and other abuses. Internet users could be found “guilty by accusation” and, perhaps worst of all, victims would not be notified that their privacy had been breached. At time of writing, Bill S-4 had passed the Senate, despite the Supreme Court ruling, but MPs will have a chance to fix the legislation when it comes before the House of Commons in the new session.

3. CSEC—Canada’s reckless and irresponsible spy agency: Before last summer, many Canadians probably didn’t even realize we had a spy agency. Now, following a series of breathtaking revelations from journalist Glenn Greenwald and whistleblower Edward Snowden, practically everybody has heard about the Communications Security Establishment Canada (CSEC). In the space of a few months it was revealed that CSEC spied on thousands of Canadian air travellers, facilitated a massive U.S. spy operation on Canadian soil, and even spied on the private communications of Brazil’s energy ministry.

If this is not illegal it should be. But the government has refused to come clean about what CSEC has been up to, let alone establish the kind of independent inquiry we need if we’re to curtail these invasive and undemocratic spying activities. The agency is even pushing ahead with a lavish new spy palace headquarters in Ottawa that will cost us more than $4.2 billion to build and operate.

When you step back to see the big picture, the breathtaking scale of the Conservative government’s mismanagement of our privacy and data security becomes clear. The government seems to be all ears when it comes to monitoring our private online communications. But it is certainly not listening to the growing and increasingly vocal opposition to costly and invasive online spying.

With privacy now shaping up to be a defining issue of the next federal election, Canadians will be watching closely to see which party offers the best plan to scale back the intrusive practices and scale-up our privacy protection rules. Determined action will be required by whichever party forms the next government to repeal warrantless spying legislation, stop CSEC’s mass surveillance activities and rein in reckless spending on our spying apparatus.

There are few rights more important in any healthy democracy than the right to privacy. When citizens believe they are being watched, their willingness to engage in democratic debate is eroded, which in turn undermines our whole democratic process. Yet we clearly have a privacy deficit in this country. The government has mismanaged the privacy rights of Canadians and it’s time for a new approach.

That is why tens of thousands of Canadians, more than 50 major organizations, and dozens of leading privacy experts are now working together to restore our privacy rights. The Protect our Privacy Coalition believes we need effective legal measures to safeguard the privacy of every resident of Canada. Learn more about how you can help us in this endeavour at the website OurPrivacy.ca.

Steve Anderson is the executive director of OpenMedia.ca, a community-based organization that safeguards the possibilities of the open Internet. David Christopher is the communications manager with OpenMedia.ca.