Tag Archives: Office of the Privacy Commissioner

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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Who watches the watchdog?

 

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The degree to which Daniel Therrien will faithfully execute the duties of his office as Canada’s incoming privacy commissioner rests entirely on his appreciation of the meaning of one word.

Call it independence or objectivity or dispassion, but the mandate and mission of this parliamentary watchdog are both clear and specific. 

They go like this, straight from the official record: “The mandate of the Office of the Privacy Commissioner of Canada (OPC) is overseeing compliance with both the Privacy Act, which covers the personal information-handling practices of federal government departments and agencies, and the Personal Information Protection and Electronics Documents Act (PIPEDA), Canada’s private sector privacy law. The mission. . .is to protect and promote the privacy rights of individuals.” 

In this, “the Commissioner works independently from any other part of the government to investigate complaints from individuals with respect to the federal public sector and Sutherland private sector.” 

So, then, what are Canadians to make of Prime Minister Stephen Harper’s choice to succeed Interim Commissioner Chantal Bernier? By all appearances, the two could not possess more divergent pedigrees. 

Like her predecessor, Jennifer Stoddart, Ms. Bernier comes from the traditional, bible-thumping school of public watchdoggery, preaching the gospel of accountability in all things government-related, come what may. 

In contrast, Mr. Therrien’s resume reads like that of a consummate insider, a man who appears to be more comfortable with going along to get along. His official bio, posted to the Prime Minister of Canada’s website, is unapologetic, even cheerful:

“In his current role, among other notable achievements, Mr. Therrien co-led the negotiating team responsible for the adoption of privacy principles governing the sharing of information between Canada and the U.S. under the Beyond the Border Accord, an umbrella agreement to enhance trade and security which includes 33 specific arrangements. These principles provide for the implementation, harmonization and augmentation of safeguards found in Canadian and U.S. Privacy legislation.”

To his supporters (among them, somewhat incongruously, is Liberal Leader Justin Trudeau), Mr. Therrien is the model of perspicacity, experience and knowledge – exactly what the office he will soon fill needs. To his detractors, he’s a catastrophe waiting to happen.

In a letter to Mr. Harper, NDP Leader Thomas Mulcair asserted, among other things, that Mr. Therrien “has nether the neutrality nor the necessary detachment to hold this position.” 

Michael Geist, an electronic security consultant, also expressed concerns. “Surely, the government is sending a bit of a signal that in an environment when there were other privacy commissioners and people with deep backgrounds on the privacy side, that they’ve chosen to focus on someone whose most recent emphasis has been on safety and security,” he told the Toronto Star last week. 

In a different time, none of this would have captured the public’s imagination quite so compellingly. After all, the privacy office, itself, wields more moral than legal persuasion over the affairs of public servants. It reports to Parliament, which is, for the moment, numerically weighted in favour of the sitting government. 

Still, the digital age – the age of whistle-blowers like Edward Snowdon and Julian Assange – has produced its very own brand of fear and loathing, where big brothers lurk around every street corner just under the closed circuit TV monitors that record you picking your nose as you jaywalk to work. 

Now, along with all the other bad news to digest, comes a front-page report in the New York Times this week that alleges the National Security Agency in the United States is “harvesting huge numbers of images of people from communications that it intercepts through its global surveillance operations for use in sophisticated facial recognition programs, according to top-secret documents.”

In this environment, Mr. Therrien’s nomination deserves the scrutiny it’s getting.

He may well be the dutiful, responsible, careful thinker his backers describe. He may be better-equipped to exercise his duties than any parliamentary watchdog, before or since. He may be a mandarin who manages to cross over from public servant to ombudsman, seamlessly. 

But will he be independent, the essence of his task? 

Time – that commodity this democracy is running down every day – will tell.

 

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