Privacy Commissioner on Bill C-30: Police need to get behind privacy

The Information and Privacy Commissioner of Ontario, Ann Cavoukian, has a long opinion piece in the National Post on Bill C-30:

Privacy Commissioner on Bill C-30: Police need to get behind privacy | Full Comment | National Post

Ann Cavoukian: Police need to get behind privacy

Special to National Post | Dec 2, 2012 11:56 PM ET

As Ontario’s Information and Privacy Commissioner, I have a deep respect for law enforcement. I frequently work closely with the police to help them succeed in fulfilling their important functions without sacrificing our vital right to privacy. The guidance I have provided over the years on the privacy implications of new technologies has given the police a roadmap on how to be effective, yet also protect our privacy.

That is why I am perplexed by the ongoing disagreement between law enforcement and Canada’s privacy commissioners over the federal government’s highly intrusive surveillance legislation, Bill C-30. Repeatedly, privacy commissioners have identified a pragmatic and principled approach to fixing the flawed aspects of the Bill. Time and again, members of the law enforcement community have insisted they need overly broad powers, while failing to recognize that they can have both new and effective law enforcement powers, while still protecting the privacy of individual Canadians.

The police want access to “subscriber data,” such as Internet Protocol and email addresses, because the data is powerful. The actual content of your communications does not need to be accessed in order to obtain a digital snapshot of your surfing habits and who you associate with — access to subscriber data can unlock this and more. It can be used to track people and their activities. It’s the key to revealing your identity online. Should the police be granted warrantless access in genuine emergencies? Absolutely. Should the police have unfettered access. No!

What is required is quite simple. The Bill must be amended to ensure that any police power to compel telecoms to disclose subscriber information requires a warrant in all but urgent circumstances — the police would then be required to report their use of such powers.

Our solution-driven approach would mean that urgent police investigations need never be stalled. Terrorists, organized criminals and those who try to harm the vulnerable by misusing the right to anonymity could be exposed and prosecuted in a timely fashion. At the same time, the public’s confidence in law enforcement would be heightened as a result of rules that prevent the identification and profiling of law-abiding citizens. In free societies such as ours, citizens should be entitled to go about their business without being forced to identify themselves. That right must be as strongly protected online as on the street.

The public understands this. Most of us recognize that our digital rights are no less important than other rights and freedoms. This is why Canadians across the country so strongly opposed the introduction of Bill C-30.

The same principles should guide Parliament in amending other provisions in Bill C-30. For example, we do not object to preservation orders. However, the power to compel telecoms to preserve data should be carefully tailored and subject to modern oversight and accountability, as is expected in a free and democratic society.

Citizens and lawmakers in the U.K. and the United States also recognize the importance of digital rights. That’s why elected representatives in those countries continue to express skepticism about the merits of privacy-invasive proposals. It’s not surprising that Bill C-30, and the proposals that our international allies are struggling with, will not be advancing until they receive in-depth scrutiny.

As Justice Sotomayor of the U.S. Supreme Court recognized in that court’s recent GPS monitoring decision, “Awareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse [that] may alter the relationship between citizen and government in a way that is inimical to democratic society.”

It is unfortunate that Bill C-30 would demand such a draconian privacy price from Canadians. Fortunately, the required solutions have already been identified: judicial oversight, allowance for warrantless access only in emergencies, transparency, and openness. Canadians should be proud that we are at the forefront of an international push to ensure that democracies provide for robust privacy protections. By proactively adopting Privacy by Design, the international standard for embedding privacy assurances into information technologies and organizational practices, we can have privacy and security, in unison. Canadians do not need to write a blank cheque for effective law enforcement. Together, we must commit to preserving our privacy ­ now, and well into the future.

National Post