Dechert's Rush: Cyber-Bulling, The Supreme Court, Internet Data Disclosure

Last week Canada’s new Privacy Commissioner - Daniel Therrien - appeared before the House of Commons Justice Committee and delivered a powerful indictment against the Conservative Party’s cyber-bullying and lawful access legislation - Bill C-13.

If there was any question that the Conservatives had appointed a lapdog as Privacy Commissioner - and I did have some concerns - Mr. Therrien has quickly proven the critics wrong.

Mr. Therrien concurred with the evidence of the legal, privacy, and technological experts (including me) who testified that personal internet information is highly private and the lax standards for obtaining that data (including voluntary disclosure by telecommunication companies) is too permissive and potentially unconstitutional.

The Conservatives did not respond positively to Mr. Therrien’s evidence.  Michael Geist - who also testified before the committee - wrote an excellent post detailing the Conservatives’ hypocrisy with respect to Mr. Therrien and their rejection of his evidence.  

Ultimately, Mr. Therrien agreed with the Liberal and NPD position that the bill should be split. The uncontroversial cyber-bullying provisions should be passed quickly and the problematic lawful access (internet surveillance) provisions should receive further study.

Bob Dechert - Parliamentary Secretary to the Minister of Justice - responded that any complex issue can be understood in 34 hours:

 

I can fill you in. There have been 12 hours of debate in the House of Commons on this bill so far. It includes 21 members of the New Democratic Party, which is more than 20% of their caucus. It includes 11 meetings of the committee, including today's. That's 22 hours of study in committee, so the total is 34 hours of debate and study.

The committee has heard from 21 special interest groups: 10 victims or groups representing victims, the police, professors of law, the Canadian Civil Liberties Association, the Canadian Bar Association, the Criminal Lawyers' Association, the Canadian Association of University Teachers, and I could go on. I think you catch my drift.

On Thursday, Bill C-13 was send back to the House of Commons with only the most minor of amendments.

A day later - on Friday - the Supreme Court of Canada released one of the most important privacy decisions since the advent of the Charter - R. v. Spencer.

It can’t be that Mr. Dechert or the Conservatives were unaware that this important decision was scheduled for release.  Perhaps they were inclined to rush the study of C-13 out of concern that the Supreme Court’s decision may undermine their legislative agenda.

The facts of the Spencer case are very straight forward.  The police obtained an IP address that was believed to be linked to the download of child pronography.  The police asked the internet provider to disclose the name and address attached to the IP address.  The information was disclosed and ultimately lead to Mr. Spencer’s arrest.

In short - the Court found that the voluntary disclosure of the subscriber information was a search that violated Mr. Spencer’s Charter rights.

The Supreme Court decision impacts Bill C-13 in three ways.

First, the Court confirmed the enhanced privacy interest in internet data.  The Conservatives contend that this data is simply the equivalent of phone book information.  Clearly the Supreme Court (as the experts did) disagree.  The Court found:

Applying this approach to the case at hand, I substantially agree with the conclusion reached byCameron J.A. in Trapp and adopted by Caldwell J.A. in this case. The subject matter of the search was not simply a name and address of someone in a contractual relationship with Shaw. Rather, it was the identity of an Internet subscriber which corresponded to particular Internet usage. As Cameron J.A. put it, at para. 35 of Trapp:

To label information of this kind as mere “subscriber information” or “customer information”, or nothing but “name, address, and telephone number information”, tends to obscure its true nature. I say this because these characterizations gloss over the significance of an IP address and what such an address, once identified with a particular individual, is capable of revealing about that individual, including the individual’s online activity in the home.

Subscriber information engages a high level of informational privacy.  This is of great importance because the definition of transmission data in Bill C-13 is much more expansive than simple subscriber information and therefore entitled to even more protection.

Secondly, the Court found that there exists a reasonable expectation of privacy in internet data that is not displaced by the exemptions found in PIPEDA, namely s. 7(3)(d) - a section used by the Conservatives to justify the permissive disclosure standards in Bill C-13.  

Given the reasonable expectation of privacy and despite PIPEDA, the Court held that voluntary disclosure of information by telecommunication companies to the State amounts to a search that engages the Charter:

In my view, in the totality of the circumstances of this case, 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. A request by a police officer that an ISP voluntarily disclose such information amounts to a search.

Thirdly, and most importantly with respect to C-13, the Court found that voluntary disclosure of internet information was not authorized by law - and violated the Charter.  

In other words a major aspect of  Bill C-13 is most likely unconstitutional - it would have been well worth Mr. Dechert’s time to wait a few days for this important piece of information

Beyond the issue of voluntary disclosure the Supreme Court’s finding of enhanced privacy with respect to internet data also calls into question the constitutionality of the reduced standard of ‘reasonable suspicion’ required under Bill C-13 in order for police to obtain a warrant - an issue I wrote about here.

Contrary to Mr. Dechert’s assertions - 34 hours of study is insufficient for a comprehensive examination of the important privacy problems raised by Bill C-13.

Mr. Dechert and the Conservatives’ rush to pass Bill C-13 is indicative of a dismissive ideology - an ideology that ignores experts, ignores the Supreme Court, and undermines the Charter.  

It is a position that risks setting free a wolf in sheeps’ clothing.