Personal Privacy Obliterated By Canada

Federal Government Is Continuing To Destroy Any Rights of Privacy

(from Patrick Ducharme’s blog at www.pjducharme.com)

Patrick Ducharme at a celebrity roast for charity
Patrick Ducharme

Are you worried about your privacy? You should be. The Canadian government intentionally exposes every Canadian to breaches of their privacy. Privacy breaches by the government and others are legislatively encouraged and protected. Access to private information is granted upon request, without a warrant or court order. Information that Canadians believe is entitled to a reasonable expectation of privacy is intentionally exposed.

There is really only one area where the Canadian government does, in fact, protect privacy. The prerequisite for privacy in this country will not surprise you. It occurs only if the information to be protected concerns the operation of the government. The more important the information is to protecting the Government’s image, the more ferociously they protect it from disclosure. Conversely, private information about you is routinely breached. Your telephone calls, emails, banking records, and personal interactions are not protected. The federal government has insidiously wiped out any hope of personal privacy.

The  government’s latest assault on our privacy rights  is found in its  proposed legislation, Bill C-23. If passed into law  the police would be allowed to secretly collect a citizen’s personal data and use it forever  without restriction .  The proposed law would prevent disclosure of the police activity .  The citizen whose data was collected would never be aware  that his/her data has been  taken and preserved by the police .  The proposed law does not provide any remedy  for the person whose  information has been taken .

 

The Liberals And NDP Incredibly Inept In Challenging New Laws

How could this happen? Canadians allowed it to happen. A once proud and tolerant nation embraced the Federal government’s ‘Get Tough on Crime’ legislation. Canadians were supportive of what was billed as anti-crime legislation that simultaneously and secretly trammeled individual privacy rights. The opposition parties have proven passively irresponsible, refusing to challenge the new laws in any meaningful way. Believing that average Canadians have moved further to the right philosophically, the cowardly opposition parties provide no resistance to these dramatic changes to the reasonable expectations of privacy previously enjoyed by Canadians. Now, the problem is everyone’s problem.

 

The Canadian Government Protects Itself Not Its Citizens

The Canadian government prohibits disclosure of its own information whenever it deems the disclosure is contrary to the Government’s interest. Examples of this are plentiful. Negative reviews of drugs produced by powerful pharmaceutical companies are withheld from the public by the government in the interest of maintaining their financial/political support. Information concerning failings by the government to protect Canadians abroad is withheld. Information is withheld concerning government spending on prisons, fighter jets, the Afghan war, and any other expensive, wasteful government projects. Efforts to obtain government information using Canada’s Access to Information Act are regularly thwarted. Applications for disclosure of information meet with lengthy delays, denials, and refusals to process.

The federal government’s political claims of ‘openness and transparency’ are sheer burlesque. The government’s policies are the antithesis of openness and transparency.  The government claims it has a right to probe your emails, telephone conversations, and private documents. Your requests to access government information conversely require: a money order in an envelope, addressed to a non-efficient governmental office created to obstruct your efforts until the information you seek has been deleted from the government’s server. Your denial will be terse and impolite. The information you seek is ‘unavailable.’

 

The ‘Personal Information Protection and Electronic Documents Act: (PIPEDA)’  And ‘Safeguarding Canadians’ Personal Information Act’ Hide A Darker Purpose

The Federal government is all about appearances. The plan: appear transparent; remain impenetrable. The government has a healthy disrespect for the privacy of its citizens. It trusts that Canadians are ignorant of its intrusions on their privacy rights. The government cleverly couches its laws under misleading titles, aimed at sounding innocuous, or subtler and more insidious, supportive of individual privacy. The Personal Information Protection and Electronic Documents Act (“PIPEDA”) is a prime example. The title suggests protection of personal information. The title is disingenuous. Its provisions support disclosure of private information from all its citizens . This legislation flies under the government’s Get Tough on Crime agenda. Under the guise of fighting crime, the government gathers and examines private information that most of its citizens naively believe are truly private.

The Get Tough on Crime agenda is informed not by principle, but by politics and polls. It exploits and deliberately exacerbates the public’s misguided fears that crime is increasing, when crime is actually decreasing. In fact, crime rates have been decreasing steadily for about 22 years. The smug, self-congratulatory tone conveyed by such titles as the Truth in Sentencing Act, or, Standing Up for Victims of White Collar Crime, this agenda has nothing whatsoever to do with truth in sentencing or standing up for victims. The Get Tough on Crime agenda has the unclean odor of politics all over it. It plays to the public’s irrational fears. It flies in the face of an ever-developing and now overwhelming body of literature going to suggest that harsher sentences lead, if anywhere, to the same or more crime, not less. It flies in the face, too, of the accumulated wisdom of our finest judges, who are now being told, in unmistakable terms, that they cannot be trusted to exercise their discretion reasonably, competently, and compassionately. These legislative amendments represent the government, like the crayfish, crawling backwards into the future.

Unlike the Patriot Act, the U. S. law that unabashedly suspends civil liberties in the name of combating terrorism, Canada’s version, PIPEDA, and it’s proposed amendments in Bill C-29 and Bill C-23 and Bill S-4; are all ostensibly aimed at protection of privacy, not combating terrorism. At least that’s what their titles claim. The titles are sanctimonious. The government’s intentions are disingenuous. To believe that the titles accurately reflect the provisions beneath them is to believe a lie.

 

No Safeguards Against Invasions of Privacy

The government claims PIPEDA is designed to ensure that Canadian businesses, organizations or individuals that collect and use your personal information for legitimate business purposes must also manage your information in a way that safeguards your privacy and protects your personal information from ending up in the wrong hands. PIPEDA refers to “personal information” and “protection”. The short title for its amendments is Safeguarding Canadians’ Personal Information Act. Don’t believe either one of them. Their titles confute their stated goals. These laws suspend civil liberties. They expand, not limit, the circumstances where personal information can be collected, used or disclosed without the owner’s knowledge or consent.

The proposed amendments provide several new circumstances where personal information may be disclosed without consent. If personal information is requested to “perform policing services” it may be disclosed. Apparently, the drafters of PIPEDA were not satisfied with the existing “exceptional circumstances” that allowed personal information of Canadians to be disclosed. The existing law permits disclosure without consent, upon request for, “enforcement of any laws of Canada, Province or a foreign country; intelligence gathering related to enforcement of any laws of Canada, a Province or a foreign country and administration of any laws of Canada or a Province.” It’s difficult to imagine what personal information was not available to the police at their whim (or request) under the existing legislation. But the government obviously thought it too restrictive. The proposed amendments do not require any lofty goal like the enforcement of law.

The proposed amendments make the old provisions seem strict by comparison. The proposed legislation checks civil liberties by provisions that only require investigating officers to be performing “policing services” as they gather your personal information from 3rd parties. The information is to be made available to them “upon request”. For greater truth in legislation the acronym PIPEDA should change to PIDPEA: ‘Personal Information Disclosed to Police Everywhere Anytime’. The new law lacks any form of restraint. It removes all impediments to accessing and using private information in any form. The term, “policing services” is not defined in the Act or in the amending Bill. Ostensibly, the janitor at a police precinct is performing policing services according to this law.

While PIPEDA limited the collection, use, and disclosure of your personal information without consent to circumstances where the police were acting under “lawful authority”, the amendments provide specifically that “lawful authority” does not require a subpoena or warrant from a court or relate to the Rules of Court ordering the production of records. Lawful authority is undefined and open-ended. The amending Bill also permits the organization disclosing the information to provide personal information without having to verify that anyone seeking personal information has lawful authority.

PIPEDA already permits voluntary disclosure of personal information to any government institution without the consent of the person affected by the disclosure,  if the organization has reasonable grounds to believe that any law of the Province or the country is/was or may in the future, be broken. Bill C-29 will allow disclosure to anyone (not just government institutions) including other businesses or organizations, without requiring grounds to believe anything related to an actual crime is, has, or will be committed.

 

Bill C-13: The New Grounds: What Might Be Necessary!

Justice Minister Peter MacKay apparently has no difficulty lumping together cyber bullying law with terrorism law. In the face of criticism from Canada’s interim privacy Commissioner, 2 provincial commissioners and at least one parent of a child who committed suicide after being victimized by cyber bullying, MacKay remained adamant that the government’s broad new police surveillance powers are the government’s response to the suicides of Rehtash Parsons, Amanda Todd, James Hubley and others. He said their deaths were a “clarion call for government action– not further study, not delaying it, not allowing experts who may have some other agenda in mind.” The reader can decide for herself whether or not the proposed amendments should lead to the following government action.

This enactment, according to the government’s own website, amends the Criminal Code to provide:

(a) a new offence of non-consensual distribution of intimate images as well as complementary amendments to authorize the removal of such images from the Internet and the recovery of expenses incurred to obtain the removal of such images, the forfeiture of property used in the commission of the offence, a recognizance order to be issued to prevent the distribution of such images and the restriction of the use of a computer or the Internet by a convicted offender;

(b) the power to make preservation demands and orders to compel the preservation of electronic evidence;

(c) new production orders to compel the production of data relating to the transmission of communications and the location of transactions, individuals or things;

(d) a warrant that will extend the current investigative power for data associated with telephones to transmission data relating to all means of telecommunications;

(e) warrants that will enable the tracking of transactions, individuals and things and that are subject to legal thresholds appropriate to the interests at stake; and

(f) a streamlined process of obtaining warrants and orders related to an authorization to intercept private communications by ensuring that those warrants and orders can be issued by a judge who issues the authorization and by specifying that all documents relating to a request for a related warrant or order are automatically subject to the same rules respecting confidentiality as the request for authorization.

The enactment amends the Canada Evidence Act to ensure that the spouse is a competent and compellable witness for the prosecution with respect to the new offence of non-consensual distribution of intimate images.

It also amends the Competition Act to make applicable, for the purpose of enforcing certain provisions of that Act, the new provisions being added to the Criminal Code respecting demands and orders for the preservation of computer data and orders for the production of documents relating to the transmission of communications or financial data. It also modernizes the provisions of the Act relating to electronic evidence and provides for more effective enforcement in a technologically advanced environment.

Lastly, it amends the Mutual Legal Assistance in Criminal Matters Act to make some of the new investigative powers being added to the Criminal Code available to Canadian authorities executing incoming requests for assistance and to allow the Commissioner of Competition to execute search warrants under the Mutual Legal Assistance in Criminal Matters Act.

The proposed amendments will, if passed, lead to the most dramatic destruction of privacy in the history of Canada. Privacy as a constitutional right will be extinguished.

Disclosure of private information will be based upon the requesting party’s belief.  The requesting party will always be a member of the  government  or the police. What belief? The information might be necessary to investigate a breach of an agreement, a law, or to prevent, detect or suppress fraud or “to prevent, detect or suppress fraud when it is reasonable to expect that the disclosure with the knowledge or consent of the individual would undermine the ability to prevent, detect or suppress the fraud”. Simply stated, the new law encourages disclosure of private personal information to anyone, for any reason.  The concept of an investigating officer investigating a specific crime  will be gone .

The Canadian government apparently asks, “Who needs terrorism as an excuse to trammel civil liberties?” The Canadian government instead embraces a philosophy that the personal privacy of Canadians will be afforded the disrespect the government believes privacy deserves. Total disrespect. The Canadian government cleverly disguises its disrespect for individual privacy under deceptive legislative titles that refer to “protection” and “safeguarding” personal information. Under these cagey, deceptive banners the government encourages all manner of disclosure of private personal information to anyone for virtually any reason. Disclosures are unencumbered by restrictive provisions. The law represents pre-eminent, unprincipled disrespect for an individual’s privacy.

The Canadian government presumably hopes that Canadians only read their titles. Examination of the contents will prove depressing for anyone who values personal privacy. For Americans, their visceral reaction to 9/11 led to the passage of the Patriot Act. The Patriot Act is an understandable reaction to the senseless tragedies in New York and Washington D.C. on September 11, 2001. For Canada, however, a country once proud of its reputation for individual freedoms and tolerance, the rationale for its laws ensuring an absence of privacy is scarcely discernible.

 

Is the Supreme Court of Canada The Answer?

The Supreme Court of Canada is about to decide a case that may have profound impact upon police authorities having warrantless access to telecom customer data. The case is R. v. Spencer. Spencer was charged with possessing child pornography. He was 19 years of age at the time of his arrest.  PIPEDA played a significant role in his arrest. Although the Act claims to protect personal digital privacy, under its provisions Spencer’s Internet service provider volunteered Spencer’s digital identification. The Act, even without the proposed amendments in Bill C-23, allowed his Internet provider to voluntarily hand over customer data to the police. The only requirement was that a police officer request it for “the purposes of enforcing any law in Canada, a province or a foreign jurisdiction.”

The police claim they witnessed certain behavior that they suspected was illegal. They went to Spencer’s Internet provider and the provider gave the police his IP address. Under PIPEDA no warrant is required. There is no judicial oversight. There is no disclosure to Spencer that he is under investigation or that his private digital data has been turned over to police authorities. The Act proclaiming  protection of privacy rights instead enhances police powers allowing them to search and seize Spencer’s information without judicial oversight.

The Supreme Court of Canada will be asked to decide whether some or all of PIPEDA’s provisions are unconstitutional. Their decision will have an impact on the proposed amendments to PIPEDA to afford the police even greater authority to search and seize private information.

 

Even Canada’s Victims of Crime Fear The Canadian Government’s Motives in Bill C-23

Bill C-23, the Canadian government’s proposed new law to provide easy access to the metadata that Internet service providers have for every call and e-mail by their customers came under fire recently from a most unusual Canadian;  one parent among the parents of 3 Canadian teenagers who committed suicide after they were bullied online. Seeking to score political points from these three tragedies, the Canadian government promised a tough new law against cyber-bullying. But the government took this tragic set of circumstances as an further opportunity to hide some new draconian laws to erode privacy rights that are completely unrelated to cyber-bullying.

Outspoken  Carol Todd, mother of Amanda Todd, one of the victims of cyber-bulling,  stated, “I am troubled by some of these provisions condoning the sharing of Canadians privacy information without proper legal process.” Ms. Todd’s concerns should be the concerns of all Canadians. Todd suggested the government remove the more controversial measures from the Bill so that it could pass with broad agreement. Presently, Internet providers may voluntarily disclose personal information they hold on their subscribers, but many insist upon a court order demanding disclosure thereby taking the decision out of their hands. Todd, an obviously articulate and informed Canadian, said this to the House of Commons committee that’s studying the proposed legislation:

“I don’t want to see our children victimized again by losing privacy rights. I am troubled by some of these provisions condoning the sharing of Canadians’ privacy information without legal process.” and,

“We should not have to choose between our privacy and our safety.”

Ms. Todd could not understand why the Canadian government wants to lump together provisions prohibiting cyber-bullying with anti-terrorism measures. Of course, these new measures are precisely that: incompatibly lumped together for political reasons only. Under the guise of protecting our children from cyber-bullying, the government seeks to pass an array of new laws aimed at infringing privacy rights. The government does so hoping that the average Canadian is not nearly as perceptive as Ms. Todd.(1)

Preventing cyber-bullying and combating terrorism are separate and distinct goals. The government fears it will face serious challenges by knowledgeable Canadians to its proposed ‘terrorism legislation’ and so it “hides” its terrorism provisions that permit organizations to disclose subscriber or customers’ personal information without court order under legislation touted as protection for our children. The government’s proposed law would permit the government to obtain subscriber or customer personal information, without a court order. The disclosures would be kept secret from the people whose information is being shared.

Another Bill proposed by the Canadian government, Bill S-4, known as the Digital Privacy Act, would also allow organizations to disclose subscriber or customer personal information without a court order. If these new laws are passed, personal privacy in Canada will also be non-existent for all digital information.

 

The L.S.U.C.’s Rules of Professional Conduct: A Special Problem for Lawyers

Rule 2 of the Rules of Professional Conduct prohibits disclosure of confidential information without the client’s permission. This rule requires that a lawyer hold a client’s information in strict confidence, subject only to few exceptions. This obligation conflicts with the open-ended, undefined laws of PIPEDA and the various new proposed laws in support. These laws encourage disclosure of private information in virtually every circumstance. What should a lawyer do? The answer: Challenge PIPEDA and any other legislation that encourages disclosure of private information.

Lawyers should make every reasonable effort to keep privileged-communication privileged. This includes using special methods available to lawyers to ensure that solicitor-client communications remain private. There are some methods available to lawyers to maximize privacy. These methods include private, face-to-face meetings with the client, using specialized equipment and software programs to enhance the privacy of telephone or electronic communications.

Edward Snowden, former CIA agent and contractor for the U.S. National Security Agency (the “NSA”) has disclosed how difficult ensuring privacy, while communicating by electronic means, can be. He disclosed the existence of numerous global surveillance programs; many of them run by and for governments, with the co-operation of telecommunication companies. These same governments prosecute our clients. Against these long odds lawyers are required to maintain confidential information.

For lawyers to ensure that communications remain private while using electronic means of communication, including the Internet, special steps must be taken. These steps include stand-alone computers, open source Internet browsers, and dedicated servers. As Edward Snowden so ably demonstrated, electronically communicated information is only as safe as the weakest link in the chain of electronic equipment. Even encrypted messages that pass through unprotected servers or servers that accommodate multiple users leave the information vulnerable to interception. The “handshake” between interconnected computers often provides the portal of access to private information.

Conclusion

In this age of mass surveillance, government secrecy and privacy-breaching legislation present and proposed,  the balance between individual privacy and government’s ability to surreptitiously spy on its citizens, the scales have tipped distinctly in favor of disclosure of private information and NOT the protection of privacy.

 

 

Notes

1. The Minister of Justice is unable to explain the connection between Amanda’s suicide and the wide-ranging legislation proposed by the government http://www.theglobeandmail.com/news/news-video/video-proposed-cyberbullying-bill-touches-on-terrorism-cable-theft/article15537000/#video2id16840402

 

 

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