Police shouldn't get to choose to disregard privacy laws

Victoria lawyer Michael Mulligan has an interesting opinion piece in today's Victoria Times Colonist about the recent fuss over the city police's disregard of privacy laws.

For those who are just tuning in, the Information and Privacy Commissioner recently did a review of the practice of automated license plate scanning. She found that the collection, retention and possible re-use of the data violated the Freedom of Information and Protection of Privacy Act.

Local Sannich police stopped the practice. The Mayor of Victoria urged the police to follow the OIPC's ruling, but the police board met in secret and decided to continue the practice.

In my view, the police above all else don't get to choose which laws they follow and which they disregard. If they thought the Commissioner's interpretation of the statute is incorrect, they could stop the practice and seek judicial review. Instead, they simply chose to continue the practice. Similarly, Mr. Mulligan calls the police to account for the use of the Bar Watch program in that city.

Here's the commentary from today's paper:

Comment: Police use of vehicle, bar data misguided - Op-Ed - Times Colonist

MICHAEL MULLIGAN , TIMES COLONIST JANUARY 4, 2013

There was a time when the nature of paper records ensured us all some measure of privacy. Only so many records could be kept and searching them took time. Those days are long gone.

Modern computer storage, combined with automated data-collection devices, has fundamentally altered the privacy landscape. This technological reality makes the civilian oversight of police agencies even more critical if we are to balance the need for law enforcement with our desire for privacy.

The recent controversy concerning the police use of automated licence-plate scanners has brought this issue into sharp relief. The local municipal police forces have been utilizing automated licence-plate recognition devices supplied by the RCMP to scan and record the licence plates of every car that passes by a police vehicle equipped with one of these devices.

The original rationale for the ALPR device was to permit police to identify stolen vehicles and drivers who were prohibited or who had an expired licence. There was little cause for privacy concerns, as there would be no need to capture and store information on every innocent passerby.

The objectionable element of the ALPR devices, as recently elucidated by the B.C. information and privacy commissioner, is that they have been configured to capture and store data on every vehicle that passes by in combination with GPS and timing information.

While the RCMP claims the information is deleted shortly after they receive it from other police forces, they intend to keep it longer to be able to determine where vehicles were spotted in the past. Used in this fashion, the ALPR devices are an affront to personal privacy. They also violate existing privacy legislation, according to the privacy commissioner.

Following the commissioner’s report, Saanich police stopped using the devices. Victoria’s police chief has, however, refused to comply. While Mayor Dean Fortin suggested that the Victoria police department should stop using the device until the privacy concerns are addressed, the police board recently decided to hold an in-camera meeting and, in secret, voted to allow the Victoria police department to carry on collecting, storing and forwarding the information to the RCMP.

Our firm recently made a request pursuant to provincial freedom of information legislation that revealed a similarly disturbing practice with respect to the collection, storage and use of personal information obtained through the Bar Watch program in Victoria.

The purpose of the Bar Watch program is to prevent people associated with gang activity, drug trafficking or other problematic behaviour from entering bars. It involves identification being obtained and scanned electronically by bar employees as people enter licensed establishments.

Again, if the Bar Watch program was operated so as to deny entry to problematic patrons, there would be little cause for privacy concerns. No information would need to be collected and stored. The identification scanning devices could simply alert bar staff when identification was associated with someone who should be denied entry.

The internal police communications we obtained paint a different picture of how the Bar Watch technology is being used and what is being done with the information. The Victoria police discuss the importance of having the identification of every patron who enters a participating establishment scanned, regardless of whether the people entering are known not to be problematic by bar staff.

The Victoria police officer in charge of the program reminds fellow officers about how useful it can be to search the database of information they have collected through the program to determine where and when people were at some time in the past.

The police are collecting and storing information concerning every individual who enters a bar or whose car is passed by a police car. Storing this information to permit the retrospective tracking of people is a serious privacy concern.

In their approach to both licence-plate scanning and the collection, storage and use of Bar Watch information, the Victoria police have demonstrated the need for careful civilian scrutiny of their practices relating to the collection and use of personal information.

Failing appropriate internal police leadership on these issues, the first level of protection for the public ought to be vigorous oversight and direction by the police board. This ought not to occur in a closed meeting. An unwillingness to publicly explain and justify the proactive tracking of anyone who drives a car or enters a bar is a serious concern.

Should the police not correct these practices, the next step may well be a court application by the privacy commissioner to compel compliance with provincial privacy legislation. If this becomes necessary, it will be an example of a seriously misguided approach by a police chief and a failure on the part of the police board to get the department in compliance with its legal and ethical obligations.

Michael Mulligan is a lawyer in Victoria.