Ontario Commissioner issues her 2011 Annual Report

Anne Cavoukian, the Information and Privacy Commissioner of Ontario has issued her Annual Report for 2011. A significant theme of the Report is not surprisingly lawful access, which has been an important issue for the Commissioner since Bill C-30 reared its head this past year:

The theme of my 2011 Annual Report — Ever Vigilant — was chosen in large part because this year Ontarians faced what I consider to be one of the most invasive threats to our privacy and freedom that I have encountered in 25 years of safeguarding citizens’ rights and championing openness and transparency in government.

That threat presented itself as lawful access legislation proposed by the federal government. The legislation was designed to provide police with much greater ability to access and track information about identifiable individuals via the communications technologies that we use every day, such as the Internet, smart phones, and other mobile devices, and at times, without a warrant or any judicial authorization. Telecommunications service providers would also be required to build and maintain intercept capabilities in their networks for use by police.

It my view, it is highly misleading to simply call such legislation “lawful access” or to champion it as a child protection measure. The broad powers proposed represent much more — they represent a looming system of “Surveillance by Design.”

Let me be clear, I hold our police services in the highest regard and have a deep appreciation for the critical public safety functions they perform. However, we must be vigilant in not allowing the investigative needs of police forces to outstrip our constitutional right “to be secure against unreasonable search and seizure.”

In the absence of significant amendments, such a proposal risks intrusions on the privacy of too many innocent individuals. Electronic scrutiny of an individual paints a detailed and revealing digital biography and is likely to capture personal information of family, friends, neighbours, colleagues and acquaintances. Properly supervised, surveillance powers can be invaluable to law enforcement. However, the consequences of unsupervised powers can be devastating to innocent individuals subjected to unwarranted suspicions, to poorly-handled evidence, or to erroneous conclusions hastily drawn.

So disturbing was the legislation that I — and every privacy commissioner in Canada — wrote to the federal Deputy Minister of Public Safety in March 2011, detailing our concerns. We provided copies of our joint letter to the House of Commons Standing Committee on Public Safety and National Security and the Standing Committee on Justice and Human Rights.

The legislation (originally referred to as Bills C-50, C-51 and C-52) died on the Order Paper when Parliament was dissolved in March 2011. However, the government pledged to reintroduce it on its re-election. (At the time of this Annual Report, the legislation was reintroduced as Bill C-30. More information is available at www.realprivacy.ca.)

Sensing a critical opportunity to engage the public and the government before the legislation was reintroduced, I decided to write my own 22-page Open Letter to the federal Minister of Public Safety and the federal Minister of Justice and Attorney General of Canada to share my concerns. I also authored several op-eds in the fall of 2011. Then, in December 2011, I decided to expand my public educational campaign, beginning with a Symposium with highly-respected thought leaders scheduled for January 2012 — “Beware of ‘Surveillance by Design:’ Standing Up for Freedom and Privacy.” I also committed to urging Ontarians, and indeed all Canadians, to write to their Member of Parliament to share their concerns about the proposed legislation. Finally, I instructed my staff to develop concrete recommendations so that the bill could be amended to ensure that Canadians will enjoy a modern, effective, and comprehensive approach to law enforcement in which privacy protection and government transparency are built directly into the legislation.