Harper: Blurring Reality on Internet Spying

September 25, 2014

This article first appeared in iPolitics.ca on September 24.  Its well worth a subscription to the site – news delivered right to your inbox – make it so….

The Conservatives’ cyber-bullying bill, Bill C-13, is back before the House of Commons for debate following a review by the House Committee on Justice and Human Rights …

See, there are a few problems with that sentence. First, C-13 is only tangentially about online harassment; it’s really a surveillance bill. Second, although there’s no question about passing it, the bill likely will only be a law long enough for it to get overturned by the courts. And the Harper government’s track record with criminal legislation suggests that won’t take very long.

Someone once defined ‘insanity’ as doing the same thing over and over and expecting different results. Over and over, we’ve seen the Harper government introduce laws that any law firm’s greenest intern could have told them would be found unconstitutional. Minimum sentences, mandatory victim fines, the retroactive elimination of parole and new limits on pre-sentence custody credit – all struck down by the courts.

The Conservatives have offered up C-13 as a necessary tool to attack the problem of online harassment. And there’s a strong and justifiable interest among Canadians to tackle the serious problem of Internet harassment — and the tragic consequences it sometimes produces.

But C-13 is a wolf in sheep’s clothing; most of the bill is devoted to recklessly expanding the state’s powers over the search and seizure of personal Internet data. It sacrifices personal privacy and is wildly inconsistent with recent Supreme Court of Canada jurisprudence.

The Conservatives know this, of course. Why else would they have shut down committee study of the bill one day before the Supreme Court released one of the most important privacy decisions since the advent of the Charter of Rights: R. v. Spencer?

Not only did the Supreme Court rule that voluntary disclosure of subscriber information to the police violates the charter, but in doing so the court gutted a key Conservative talking point.

In justifying C-13’s expansion of surveillance powers, the Conservatives have time and time again attempted to minimize the privacy interests in Internet subscriber information — arguing that the data is much like what you can find already in a phone book.

“(Telecommunications companies) are providing basic address information such as name and address,” said Conservative MP Mike Wallace, chair of the Standing Committee on Justice and Human Rights.

Not so, says the Supreme Court; it found that subscriber information reveals detailed personal information and engages a high level of privacy:

The subject matter of the search was not simply a name and address of someone in a contractual relationship … 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.’

This ruling is an inconvenient one for the Conservatives, given how they doubled-down on C-13 and actually sought to encourage unconstitutional voluntary disclosure through granting complete civil and criminal immunity to cooperative telecommunications companies.

Given what the Supreme Court has had to say about privacy interests in Internet data, there is no principled reason to not base the disclosure and warrant provisions in C-13 on the traditional and judicially approved standard — reasonable and probable grounds.

But why just ignore the court’s decision when you can distort it? In debate this week, Justice Minister Peter MacKay had this to say:

(In the NDP’s), reading of Spencer, (they) somehow would leave the House, and Canadians, with the impression that this creates new police powers or this is somehow going to lead to further breaches of privacy. Nothing could be further from the truth. What Spencer did in fact was confirm the fact that no new powers were going to be bestowed upon the police …

Did MacKay actually read the decision? Or get someone to read it to him?

The Supreme Court did not confirm that “no new powers were going to be bestowed upon the police”. The Court found that the ‘old’ powers were unconstitutional and confirmed the heightened privacy interest in Internet data — a ruling that is completely inconsistent with the new law.

But reading Supreme Court decisions backwards seems to be Mr. MacKay’s talent. Shortly after the Spencer decision was released, he said:

Mr. Speaker, let us look at the actual Supreme Court decision, paragraph 73. It is a declaratory provision that confirms the existing common law powers of police officers to make enquiries … That is exactly what we have been saying. It is the same provision of Bill C-13.

Read the whole paragraph, however, and it quickly becomes clear that the court said the precise opposite:

Since in the circumstances of this case the police do not have the power to conduct a search for subscriber information in the absence of exigent circumstances or a reasonable law, I do not see how they could gain a new search power through the combination of a declaratory provision and a provision enacted to promote the protection of personal information.

But in case this is all getting too confusing (and in case Mr. MacKay is reading this column and needs some help), let’s break it down to the essential facts:

The Conservatives proposed a controversial law that would expand the state’s Internet surveillance powers.

The bill was attacked by experts (including myself) as unconstitutional.

The bill was rushed through committee with only 22 hours of evidence.

The plug was pulled on the hearings a day before the Supreme Court was to release a foundational decision on Internet privacy.

The Supreme Court’s decision fundamentally contradicted the proposed bill, calling into question its constitutionality.

The Conservatives have the gall to claim that the decision confirms what they’d been saying all along — that the new law is justified. Black is white, love is hate, peace is war …

In short, the government is doing its best to obscure the fact that our highest court has articulated the constitutional limits of invasive police investigative techniques — in order to advance a policy agenda it knows is extremely vulnerable.

I guess if you can’t change reality, blurring it is the next best thing.

Law Blog RSS