Privacy Commissioner suprisingly approves cyberbullying bill’s ‘lawful access’ powers

Whoa. According to the Globe & Mail, the outgoing Privacy Commissioner of Canada has come out supporting the lawful access provisions of the government's new so-called cyberbullying bill (Bill C-13) (See: Privacy watchdog backs cyberbullying bill’s ‘lawful access’ powers - The Globe and Mail.)

From the Globe:

Ms. Stoddart – who steps down Monday after a high-profile 10-year term – was a vocal critic of the 2012 bill. She said the latest version appears to be an improvement and she doesn’t fault the government for linking lawful access and cyberbullying.

“I think it stands to reason that in order to literally police the Internet, you do need these powers. And if you want to be effective against cyberbullying, I would understand you do need extraordinary powers, so it doesn’t seem to me inappropriate,” she said. “That’s my take on it at the moment, but as we learn more, perhaps there are things in there that you don’t need.”

I am very surprised and, frankly, disappointed.

The bill creates a number of new production orders, by which the police can require a third party to hand over any kind of information, including location tracking data. And all the production orders require that the police convince a justice of the peace that you are a suspect of having violated any Canadian federal law (such as the Copyright Act) without any obligation to substantiate that you likely committed a crime. Current search warrants require "reasonable grounds to believe", not the incredibly low "reasonable suspicion" standard.

These production orders can apply to your text messages, your e-mail messages, your internet history, your banking information and any other information that a third party may know about you.

For more on this, see my post on the new cyberbullying bill.

Update (2013-11-28) - The statements attributed to the Commissioner have been significantly tempered by a posting on the OPC's website:

Statement from the Privacy Commissioner of Canada regarding Bill C-13 - November 28, 2013

OTTAWA, November 28, 2013 – Privacy Commissioner of Canada Jennifer Stoddart today issued the following statement in response to requests for her Office’s preliminary comments on Bill C-13, An Act to amend the Criminal Code, the Canada Evidence Act, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act:

My Office is currently reviewing the Bill thoroughly and, in particular, we are examining legal controls over any new investigative powers. We will make our full comments to Parliament in due course, with the goal of contributing constructively to the eventual study of this Bill in keeping with our role as an Agent of Parliament.

We commend the government for recognizing the gravity of privacy intrusions online, and for proposing action to address the issue of cyberbullying.

We recognize that law enforcement authorities need up-to-date tools to fight online crime at a time of when technologies are changing rapidly, but this must be done in a way that respects Canadians’ fundamental right to privacy.

As for our preliminary observations on Bill C-13, we note that many troubling aspects of the former Bill C-30 have not been repeated, for example, warrantless access to personal information. However, we have questions about the following issues:

• new investigative powers, (including preservation orders) proposed by the Bill and the thresholds for their use;
  
• the potentially large number of “public officers” who would be able to use these significant new powers; and
  
• a lack of accountability and reporting mechanisms to shed light on the use of new investigative powers.

My Office was not consulted on the Bill and the first time we saw a copy was Wednesday, November 20th, when the legislation was tabled. Justice Canada officials met with officials from our Office this summer, at which time we discussed specific recommendations made in a report by Federal-Provincial and Territorial officials on cyberbullying.

We look forward to sharing more comprehensive comments on the Bill with Parliament.

Update (2013-12-03) - The Commissioner has responded to the Globe & Mail's report in a letter to the editor:

Dec. 3: Safety derailed – and other letters to the editor - The Globe and Mail

Privacy but …

Re Privacy Online (letters, Dec. 2): We welcome the fact that government is taking action against cyberbullying; we are also pleased to see that the government has not repeated some of the more privacy-intrusive aspects of previous lawful access legislation – in particular, access to personal information without a warrant.

However, after a preliminary review of the legislation, we have a number of questions, specifically with respect to proposed new investigative powers and thresholds for their use, as well as the potentially large number of “public officers” who would be able to use these significant new powers. We also note there is a lack of accountability and reporting mechanisms to shed light on the use of new investigative powers.

The Office of the Privacy Commissioner will make its full comments to Parliament in due course, with the goal of contributing constructively to the eventual study of this bill.

Jennifer Stoddart, Privacy Commissioner of Canada