An Ottawa lawyer is raising concerns over a proposed federal bill that would give law enforcement the ability to obtain Canadians’ private information and intercept communication, and he says Ottawans should be concerned.
Bill C-22,
the lawful access bil
l, proposes limited unwarranted and broader warranted powers to authorities. Under the bill, law enforcement and Canadian Security Intelligence Service (CSIS) can approach telecommunication companies and ask them, yes or no, if someone is a client before obtaining a warrant to get more information.
This is a step back from the
original proposal in Bill C-2,
which would have allowed police and CSIS officers to approach any service provider to ask, without a warrant, if an individual was a client and if the company knew of other service providers who had dealt with that individual. This included service providers that are protected by privilege, such as doctors and lawyers.
Michael Geist, Canada Research Chair in Internet and E-Commerce Law at the University of Ottawa, says the bill may be unconstitutional.
“What matters is whether or not we provide the tools to law enforcement, but at the same time ensure that we strike an appropriate balance by protecting people’s privacy consistent with the Charter of Rights and Freedoms,” he told the Ottawa Citizen.
“The provisions are ultimately going to be struck down, and that doesn’t help law enforcement or privacy. I mean, that really doesn’t help anyone.”
Geist’s comments came more than a week after the federal Liberal government tabled the bill on Thursday, March 12.
Public Safety Minister Gary Anandasangaree said new lawful access legislation is needed because Canada is “woefully behind our most important allies.”
“Criminals use the same digital tools that we have in our pockets, but they use them for money laundering, online sexual abuse, extortion, fraud and human trafficking. … And the criminals are organized, often across borders and continents. Their crime is transnational. The tools we have to fight them are inadequate,” he told reporters at a news conference on March 12.
Ottawa Police Service Chief Eric Stubbs
said he is pleased that the federal government is trying to “modernize” legislation around lawful access.
Detectives in Ottawa are required to secure production orders for an “overwhelming majority” of their investigations, he said, and the process can often be slow and complicated. It may also involve phones, apps, online accounts, messaging platforms or cloud storage that may be operated by multiple companies in multiple jurisdictions.
“The reality is that crime has changed faster than the laws and processes that police rely on to investigate,” Stubbs told reporters on March 12.
“To be clear, this is not about asking for unchecked powers, and it is not about setting aside rights. … It’s about ensuring that when police have the legal grounds and the judicial authorizations to obtain information, that the system works in a way that reflects the speed and complexity of modern crime.”
But Geist said Bill C-22 will lower the standard that police have to meet in order to obtain a production order for digital information.
Currently, Ottawa police have to prove to a judge that they have reasonable grounds to believe that they need to obtain someone’s information from a telecommunication company for a criminal investigation.
The new bill only requires police to prove that they have reasonable grounds to suspect that a crime is about to be committed to obtain a production order for that information.
“The bill effectively lowers the standard that police have to meet. Sure, law enforcement says they’re happy, but that means they need less evidence and need to do less work to get the get information about subscribers. And I don’t think that’s that’s a good thing. It’s the lowest standard in Canadian criminal law,” Geist said.
“The standard that we currently have in place … law enforcement have been using for many, many years to obtain information on hundreds of thousands of (telecommunication) subscribers where needed. It’s not clear there’s a problem with the standard that we have right now, because it’s been working for years.”
Privacy risks around personal information
Bill C-22 also proposes new legislation that would compel telecommunication companies to store and retain client metadata, like device location, for a year and make it available to law enforcement and CSIS with a warrant. The metadata can be used to track a person’s live location in case they pose a national security threat or are considered to be in danger.
This will be the first law of its kind in Canada if Bill C-22 receives royal assent, and Geist says it poses large privacy risks because telecommunication companies will be required to store large amounts of highly sensitive personal information.
For example, wireless providers will be forced to disclose location information for every subscriber for up to a year. Assuming that everyone keeps their phone in their bags or pockets all the time, that data traces everywhere they go.
“There may be value in specific telecommunications information in certain circumstances, but the notion that telecommunication providers should be retaining data on everyone for the proverbial needle in a haystack instance where they need that information creates a huge privacy risk to 99.9 per cent of Canadians, where that data will not be sought or needed,” he said.
Geist added that other countries have introduced similar provisions that have been struck down in court for being disproportionate.
The European Union Data Retention Directive, which was first introduced in 2006,
was struck down by the Court of Justice of the European Union in 2014
for being a disproportionate interference with fundamental rights.
“This (provision) in particular comes as a surprise, because the government did not include metadata in Bill C-2. It’s one of the major new additions to the bill, and in some ways this effort to recalibrate the privacy balance in Bill C-22 as opposed to Bill C-2 is badly undermined by the standards to get subscriber information and the mandatory retention policies on metadata.”
So why should Ottawans care?
Geist argued that Ottawans should care about the bill because privacy is a fundamental right in Canada.
“If we undermine some of those principles, then we’re all the worse off for it,” he said.
Security breaches affect everyone, no matter if someone is a lawful civilian or a criminal, Geist added.
“You can end up being harmed by virtue of the fact that this data is being retained for up to a year. It puts everyone’s privacy at risk regardless of whether or not they have something to hide or whether they’re a subject or target of an investigation,” he explained.
“This bill is essentially saying that we need to swoop up everyone’s data on the off chance that we need to target one individual, but that one-in-a-million chance puts a lot of people’s personal information at risk.
“There are real risks associated with that misuse, and that’s not even getting into issues around phishing and other kinds of stuff, where, once the data is there, what other uses can be made of it? What is a potential misuse of data that is retained for these long periods of time.”
Geist also said more evidence is needed to prove that these provisions work.
He said while he appreciates the Ottawa Police Service’s efforts to keep communities safe, there needs to be a balance between the need for public safety and everyone’s right to privacy.
“My view would be that law enforcement needs to be regarded, really simply, as one other lobby with a vested interest in a particular outcome,” Geist said.
“Frankly, this debate would be, I think, far more robust if law enforcement did less cheerleading and more evidence ranking. There’s often a lot of talk from law enforcement about how they need this, but far less actual evidence about instances where the current system has proved to be a barrier to do their jobs.
“Of course, you want to know what law enforcement thinks, but let’s recognize they are not the whole part of the story here, when the privacy interests of all Ottawa, and all Canadians, are potentially at risk.”
— With files from Christopher Nardi
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