Having had the benefit of a few days to consider the implications of the Supreme Court of Canada decision in Spencer, the Senate last night proceeded to ignore the court and pass Bill S-4, the Digital Privacy Act, unchanged. The bill extends the ability to disclose subscriber information without a warrant from law enforcement to any private sector organizations by including a provision that allows organizations to disclose personal information without consent (and without a court order) to any organization that is investigating a contractual breach or possible violation of any law. Given the Spencer decision, it seems unlikely that organizations will voluntarily disclose such information as they would face the prospect of complaints for violations of PIPEDA.
Despite a strong ruling from the Supreme Court of Canada that explicitly rejected the very foundation of the government’s arguments for voluntary warrantless disclosure, the government’s response is “the decision has no effect whatsoever on Bill S-4.”
As I posted yesterday, the government had argued in committee that:
In the instance of PIPEDA, because of the type of information provided in a pre‑warrant phase such as basic subscriber information, it would be consistent with privacy expectations and therefore it’s not really putting telecoms, for example, in some unique position in terms of police investigations.
The Supreme Court of Canada rejected this view, concluding that:
there is a reasonable expectation of privacy in the subscriber information. The disclosure of this information will often amount to the identification of a user with intimate or sensitive activities being carried out online, usually on the understanding that these activities would be anonymous.
That cannot be credibly described as “no effect whatsoever.” Indeed, the government’s recently appointed Privacy Commissioner also pointed to Spencer and urged the government to consider the implications on S-4.
In another post yesterday on the future of C-13 and S-4, I lamented that the “government could adopt the ‘bury our heads in the sand approach’ by leaving the provisions unchanged, knowing that they will be unused or subject to challenge.” I argued that a better approach would be to address the issue directly, providing certainty to businesses and Canadians.
Perhaps unsurprisingly given its recent track record on privacy, it has chosen the head in the sand approach. During debate at the Senate yesterday, Conservative Senators repeatedly argued that Bill S-4 actually strengthens privacy, despite the fact that it opens the door to warrantless voluntary disclosure to any organization (it also enshrines weak data breach rules that do not provide protection as strong as that found in some other jurisdictions). Moreover, they tried to distinguish Spencer by arguing that it involves a criminal investigation disclosure to police, while the S-4 expansion of warrantless disclosure involves disclosures to private organizations.
Yet the principle is obviously the same: there is a reasonable expectation of privacy in subscriber information that should not be disclosed without a warrant or court order. No organization should be disclosing that information and when they do, they are likely to face a complaint with the Privacy Commissioner of Canada for violating PIPEDA. By leaving S-4 unchanged, the government is encouraging voluntary disclosures even after the Supreme Court explicitly ruled against them.
While the bill must still pass through the House of Commons, the government’s decision to rush the legislation through the Senate (it conducted only a few hours of hearings) and to seemingly ignore the Supreme Court’s decision creates further uncertainty for Canadians and Canadian businesses. Everyone needs rules that comply with the letter and spirit of the Spencer decision, which Bill S-4 fails to do on both counts.
What will the SCC response be legally Michael?
Best, Steve
Typo?
This, “should not be disclosed with a warrant or court order” should be “should not be disclosed without a warrant or court order”, right?
Unbelievable !
The shear arrogance towards Canadians by this government is truly stunning Michael.
S4 and C13
Even if they pass, the Court will rule them unconstitutional. Nothing but a waste of taxpayer money. Screw Harper and his cronies.
Yes and no…
>> S4 and C13 – Even if they pass, the Court will rule them unconstitutional.
Probably true and, this may be what Harper wants. He can tell his loyal tea party members that he tried but the big bad court overruled him.
>>Nothing but a waste of taxpayer money.
Pretty much the daily business of this government. Until they find more Public Libraries to burn.
>>Screw Harper and his cronies.
Okay I have agree on this point. The Tea Party North has overstayed its welcome.
Harper’s next step……
Prorogue the Supreme Court.
It’s a pesky little institution that interferes with Herr Harper’s vision of ‘Totalen Krieg’ on privacy.
I THINK HARPER IS GETTING READY TO STEP DOWN
Privacy is lost. My wife and children and I refiled again for the 6th time in the last 5 months to get our investigation information from The Justice Department Of Canada. They don’t want us to match up their investigation timeline against us with the torcher journal times and dates my wife has been keeping. 5 years ago my wife started an abuse journal and she writes in it every day and she has documented every date and time and the names of agents and places the abuse happened to us and our children. Even the dates and times and places where we were poisoned and assulted. We have so much documentation. We have photos, film footage, voice recordings, even fraudulent government documents given to us by Canadian Intelligence agents. We reapplied with The Privacy Commissioner’s Office Of Canada on June 9 2014 for the 6th time in the last 7 months and as soon as we reapplied online with them they removed their online application function. Then on June 12 2014 they started lawyering up to get more legal help for their already large legal team. Every time now we go downtown Vancouver they try to pick fist fights with me. They will have anywhere from 3 to 5 guys wanting to fight me trying to start trouble with us but we laugh at their attempts to bait us. We had to move again because they got us kicked out of another apartment. The landlady wouldn’t tell us why but all she said was she didn’t realize how corrupt the police were, that’s all she would say. They are still messing around with our internet. They have a new game now. When we are posting the truth about them online they will block our internet with a page from shaw saying our internet is being blocked and we can’t use our internet until I spoof my MAC address to get a new IP address and then we can continue to use our internet again. Pretty sad when we have to spoof our MAC address to obtain a new IP address so we can use our internet that we pay for. Thanks for reading.
Lawless Government
When Canada’s voters rewarded a government in contempt of parliament with a majority, it no longer felt obliged to respect any law (if indeed it ever had). Ignoring a unanimous Supreme Court decision is one easily-predictable result.
Arrogance or stupidity?
Likely the latter – the government is intent on ramming this one through. It will be ruled unconstitutional and will be a complete waste of tax payer money…
John: “Unbelievable ! The shear arrogance towards Canadians by this government is truly stunning Michael.”
And they will get in with another majority to carry on. Take a look at the dolts in Ontario. We were thrown under the bus by the ruling party, and they came back with a MAJORITY to carry on.
No hope …
Pingback: I·CONnect – Constitutional Dialogue v2.0? Contentious Government Responses to the Supreme Court of Canada