The Canadian Privacy Law Blog: Developments in privacy law and writings of a Canadian privacy lawyer, containing information related to the Personal Information Protection and Electronic Documents Act (aka PIPEDA) and other Canadian and international laws.
The author of this blog, David T.S. Fraser, is a Canadian privacy lawyer who practices with the firm of McInnes Cooper. He is the author of the Physicians' Privacy Manual. He has a national and international practice advising corporations and individuals on matters related to Canadian privacy laws.
For full contact information and a brief bio, please see David's profile.
The views expressed herein are solely the author's and should not be attributed to his employer or clients. Any postings on legal issues are provided as a public service, and do not constitute solicitation or provision of legal advice. The author makes no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained herein or linked to. Nothing herein should be used as a substitute for the advice of competent counsel.
This web site is presented for informational purposes only. These materials do not constitute legal advice and do not create a solicitor-client relationship between you and David T.S. Fraser. If you are seeking specific advice related to Canadian privacy law or PIPEDA, contact the author, David T.S. Fraser.
Thursday, September 13, 2007
The CBC has a lengthy piece on the quiet consultation I referred to the other day (Canadian Privacy Law Blog: Public Safety Canada Quietly Launches Lawful Access Consultation):
Government moving to access personal info, sparking privacy fears
Government agencies are moving to gain access to telephone and internet customers' personal information without first getting a court order, according to a document obtained by CBCNews.ca that is raising privacy issues.
Public Safety Canada and Industry Canada have begun a consultation on how law enforcement and national security agencies can gain lawful access to customers' information. The information would include names, addresses, land and cellphone numbers, as well as additional mobile phone identification, such as a device serial number and a subscriber identity module (SIM) card number.
The consultation also seeks input on access to e-mail addresses and IP addresses. An IP address is a number that can be used to identify a computer's location.
The document says the objective of the consultation is to provide law enforcement and national security agencies with the ability to obtain the information while protecting the privacy of Canadians.
The document says that under current processes, enforcement agencies have been experiencing difficulties in gaining the information from telecommunications service providers, some of which have been demanding a court-issued warrant before turning over the data.
"If the custodian of the information is not co-operative when a request for such information is made, law enforcement agencies may have no means to compel the production of information pertaining to the customer," the document says. "This poses a problem in some contexts."
It says enforcement agencies may need the information for matters other than probes, such as informing next-of-kin of emergency situations, or because they are at the early stages of an investigation.
"The availability of such building-block information is often the difference between the start and finish of an investigation," according to the document.
Privacy advocates, however, expressed displeasure over both the content and the process of the consultation.
Criticizes short consultation time
Michael Geist, chair of internet and e-commerce law at the University of Ottawa, said the process is not being conducted publicly as two previous consultations have been, in 2002 and in 2005.
The consultation has not been published in the Canada Gazette, where such documents are normally publicized, or on the agencies' websites.
Interested parties have been given until Sept. 27 to submit their comments, which is a short consultation time, Geist said. Several organizations and individuals contacted by CBCNews.ca only received their documents this week.
More pointedly, a number of parties that took part in the previous consultations, including privacy and civil liberty advocates — and even some telecommunication service providers — have not been made aware of the discussion, he said.
"It's really disturbing particularly in light of the fact that they've had two prior consultations on lawful access in the past, so it's not as if they don't know the parties that are engaged on this issue," Geist said.
Officials with the Canadian Civil Liberties Association were not aware of the consultation.
All about appearances?
Jacqueline Michelis, an Ottawa-based spokeswoman at Bell Canada Inc., the country's largest telecommunications provider, said the company was aware of the consultation but would not comment further. Rogers Communications Inc. and Telus Corp., the country's next biggest providers, did not have immediate comment.
Geist said the other problem with the consultation is that it appears as if the government agencies have already made up their minds on how to proceed and are simply conducting it for appearances' sake.
"The fear is that law enforcement knows what it would like to do — it would like to be able to obtain this information without court oversight — and so it has pulled together this consultation in the hope that they can use that to say they have consulted, and here are the safeguards that the consultation thought was appropriate."
Denies document secrecy
Mélisa Leclerc, a spokeswoman for Public Safety Minister Stockwell Day, said the government was not trying to keep the consultation secret and would post the document on the internet on Thursday. The deadline for submissions would also be extended, although no decision on a date has been made yet.
Colin McKay, a spokesman for the privacy commissioner of Canada, said the government agencies have not yet proven that accessing information without a court order is necessary. The commissioner will be making a submission to the consultation on that matter.
"We'd like to see some proof that this is a necessary step because at the moment there is provision in privacy law if necessary and if presented with a legal authority to do it, in most cases that's a court order," McKay said. "That gives Canadians some level of protection."
The Information Technology Association of Canada, which will also be making a submission, agreed and said it would like to see details on instances where telecommunication providers have refused to co-operate with authorities.
"This is about transposing to new technology the same kind of law enforcement we used to have on wire-line phone networks," said Bernard Courtois, president and chief executive officer of ITAC. "Conversely, just because you're going to do law enforcement on new technology people should not lose any of their privacy protection or rights in terms of the nature of investigation."
Canada's move is in contrast to one by the United States, where last week a federal judge overturned a part of the Patriot Act that allowed the Federal Bureau of Investigation to secretly obtain personal records about customers from internet providers, phone companies, banks, libraries and other businesses without a court's permission.
Speaking on the phone from Paris, Peter Fleischer, global privacy counsel for internet search giant Google Inc., told CBCNews.ca that even in the security-conscious United States, courts have moved to curtail excessive attempts by the government at extracting personal information.
A year and a half ago, the Department of Justice obtained a warrant demanding Google turn over users' personal information as part of an investigation into the effectiveness of anti-pornography software that was being tested. Google refused and a judge ending up siding with the company.
"The order we had from the U.S. Department of Justice was a valid legal order under the U.S. legal system, but even then it was excessive and infringed privacy, and was curtailed by a U.S. court when we challenged it," Fleischer said.
Companies operating in Canada, and their customers, should have the same rights here, he said.
"There should be judicial authorization and a valid legal process before a government should be able to compel companies to hand over information about their users."
Ironically, Google on Wednesday came under fire from Privacy Commissioner Jennifer Stoddart for its Street View web photo application. The commissioner said many of the images used by the application could break Canada's privacy laws.
Fleischer would not comment on the matter, but said he would address it when he visits Canada later this month.
The Canadian Privacy Law Blog is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 2.5 Canada License.