Warning: Canada’s privacy watchdog also bites

 

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Well, now, that didn’t take long. It seems the honeymoon had only just begun before the newlyweds were hissing and spitting at each other. 

And they all said it was a match made in parliamentary heaven, that it would last, if not forever, at least until the Harper wagon train pulled up its stakes for the last time and headed back home towards the setting sun.

But, in an interview with the Globe and Mail earlier this week, Daniel Therrien, Canada’s new privacy commissioner, took a largely unexpected leap and publicly repudiated the federal government’s interpretation of a recent Supreme Court decision on online privacy in Canada. He even termed parts of the controversial Bill C-13 – which seeks, among other things, immunity for telcos that voluntarily relinquish subscriber information to authorities – as nugatory.

“At a minimum, I would say the immunity clause in Bill C-13 becomes essentially meaningless,” he told the newspaper. “The Supreme Court agrees that this is sensitive information, that it is entitled to constitutional protection. That is a huge clarification. . .So the idea there would be voluntary disclosure from service providers to law enforcement agencies – it is now clear that is not going to pass constitutional muster. I think that is clear.”

In his statement to the House of Commons Standing Committee on Justice and Human Rights (JUST) on Bill C-13, he was just as categorical: “We are concerned this broad language (in the Bill) could lead to a rise in additional voluntary disclosures and informal requests. This is of particular concern with private-sector companies that are otherwise prohibited from disclosing personal information without consent under PIPEDA or substantially similar legislation. In essence, this could amount to permissive access without court approval and oversight.”

He added: “Canadians expect that their service providers will keep their information confidential and that personal information will not be shared with government authorities without their express consent, clear lawful authority or a warrant.

This does not sound like the guy about whom a panel of privacy experts warned the Prime Minister in an email prior to Mr. Therrien’s appointment earlier this month.

“With great respect and without any intended slight on his abilities, we feel obligated to object to the Government’s recently announced appointee for Privacy Commissioner of Canada,” the letter noted. “As long-standing Assistant Deputy Attorney General for Public Safety, Mr. Therrien lacks the perspective and experience necessary to immediately tackle Canada’s many privacy problems. . .Mr. Therrien’s direct responsibility for and oversight of the programs he will now be called upon to advocate against will exacerbate the already steep learning curve with which he is faced.”

As it turns out, not so much. Also broadly out of step with events was NDP Leader Thomas Mulcair who fumed in question period earlier this month, “Does the prime minister understand why Canadians find it more than a little bit creepy that the prime minister wants to name this guy to protect their privacy.”

In contrast, Liberal Leader Justin Trudeau now comes off looking downright prescient. In his letter to the PM in late May, he wrote, “I have come to the conclusion that Daniel Therrien would be an excellent candidate for this position. . .His knowledge and experience, as well his distinguished record of public service will be of great benefit to Canadians.”

In fact, if Mr. Therrien’s initial performance is any indication, Canadians should rest a little more easily. 

Bills C-13 and S-4, which rewrites the regulations covering inter-company dissemination of user information, are time bombs that the Supremes have wisely sought to defuse. What’s more alarming, perhaps, than the proposed legislation is the government’s official response to the Court’s decision.

According to a Globe story, Justice Minister Peter MacKay claims that the ruling actually “backs up the government’s view because ‘voluntary disclosures do not provide legal authority for access to information without a warrant,‘ though the bill (C-13) allows police to get information without a warrant.”

Huh?

It is for reasons such as the foregoing bafflegab that individuals like Mr. Therrien are in great demand by democracies around the world. Their jobs are not to dance with power, but to push against it, especially where new communications technologies vastly expand the opportunities for unauthorized or explicitly illegal surveillance.

Yes, Ottawa officialdom, the honeymoon is indeed over.

 

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