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Bill C-13: Privacy Lost
SECURITY SHELF

Bill C-13: Privacy Lost 

 
Proponents of mass surveillance attempt to dismiss privacy concerns by emphasizing metadata collection, as if tracking the source and destination of every email and phone call without judicial oversight is somehow not a privacy issue. When that didn’t work, they accused opponents of aligning with criminals and terrorists and hid behind child safety. For example, in February 2012, former Conservative Public Safety Minister Vic Toews (now a federal judge) shockingly told Liberal Public Safety Critic Francis Scarpaleggia that “he can either stand with us or with the child pornographers.” Toews also tabled Bill C-30 and an hour later changed the short title from “Lawful Access Act” to “Protecting Children from Internet Predators Act”. 
 
While the Conservative government was shamed into withdrawing C-30, most of the provisions were reintroduced in Bill C-13. Even with a majority government, Justice Minister Peter MacKay continues to use the guise of child safety to invade the privacy of Canadians. This time the spin is cyberbullying. C-13 creates a new criminal offence to address the non-consensual distribution of “intimate images”, making it politically difficult for Members of Parliament to oppose the bill.
 
The majority of C-13 focuses on providing law enforcement and other government agencies with access to personal information. One of the most controversial provisions of C-30 involved warrantless access to subscriber information by law enforcement. C-13 takes a somewhat softer approach:
 
“487.0195 (1) For greater certainty, no preservation demand, preservation order or production order is necessary for a peace officer or public officer to ask a person to voluntarily preserve data that the person is not prohibited by law from preserving or to voluntarily provide a document to the officer that the person is not prohibited by law from disclosing.
 
(2) A person who preserves data or provides a document in those circumstances does not incur any criminal or civil liability for doing so.”
 
This provision significantly broadens the scope of existing laws that require the officer to be “enforcing or administering this or any other Act of Parliament”. It also provides indemnity against criminal and civil liability. As a result, C-13 opens the door to requests for voluntary assistance for any reason and will result in an increase in the volume of private information handed over to police and other government agencies without judicial oversight.
 
In response to the federal Privacy Commissioner, the Canadian Wireless Telecommunications Association indicated that their members receive almost 1.2 million “aggregate average annual requests” from government authorities. In addition, 8 out of 9 member companies seek reimbursement for the cost of complying with these requests. The companies all refused to provide individual responses to the Privacy Commissioner, responding only in aggregate. This lack of transparency raises serious questions about the relationship between law enforcement and Canadian telecommunication providers.
 
Some of the other highlights of C-13 include: 
  • Peace officers can demand that records be preserved and impose any conditions that they consider appropriate, including conditions prohibiting disclosure of the demand’s existence. No court order is necessary and failing to comply will be a criminal offence.
  • Judges can issue an order to trace a communication. A peace officer or public officer may serve the order on any person who was involved in the transmission of the communication and whose identity was unknown when the application was made. In other words, a single order can be served by the police on any number of individuals or companies. The judge can also include conditions prohibiting a person from disclosing the existence of the order.
  • Clarification that warrants can be issued to authorize the use of tracking devices including on vehicles or a “thing that is usually carried or worn by the individual”. This includes the authority to “covertly install, activate, use, maintain, monitor and remove” the tracking device, and confirms that “tracking device” includes a computer program.
  • While most Criminal code provisions require “reasonable grounds to believe”, several provisions in C-13 require significantly less onerous “reasonable grounds to suspect”, making it easier for police to exercise these powers.
As technology and the Internet of Things continue to evolve Canadians need stronger privacy laws more than ever before. The passing of C-13 can only result in privacy lost.

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