Privacy Commissioners Worried About Lawful Access Initiative

Matt Lonsdale is a JD candidate at Dalhousie University.

In an open letter to the Deputy Minister of Public Safety dated March 9, 2011, the federal Privacy Commissioner of Canada and her provincial and territorial counterparts expressed their concerns with the government’s lawful access initiative, a series of bills which would grant new surveillance powers to police and impose additional disclosure requirements on telecommunications providers. The Privacy Commissioners wrote that “[w]e believe that there is insufficient justification for the new powers, that other, less intrusive alternatives can be explored and that a focussed, tailored approach is vital.” Three bills were nominally considered to be part of the lawful access initiative:

• Bill C-50: Improving Access to Investigative Tools for Serious Crimes Act
• Bill C-51: Investigative Powers for the 21st Century Act
• Bill C-52: Investigating and Preventing Criminal Electronic Communications Act

The Privacy Commissioners were concerned that these bills would “substantially diminish the privacy rights of Canadians”. Particular attention was paid to s.16 of Bill C-52, which requires telecommunication providers to release subscriber information to designated law enforcement officers upon request. The Commissioners were apprehensive about this warrantless disclosure of personal information, when similar provisions in the Criminal Code do not allow information to be obtained from a commercial entity without prior judicial scrutiny.

The Commissioners were also concerned about the legislative gap created by an oversight model which places obligations on Privacy Commissioners to take an active role in the audit process created by Bill C-52. While the federal Privacy Commissioner has jurisdiction over the RCMP, it has no such authority over provincial police forces. As privacy legislation and the powers of privacy officers vary from province to province, this could create an unwelcome disparity between how the exercise of these new powers by police forces is reviewed in each province.

Along with a host of other proposed legislation, the lawful access bills died when Parliament was dissolved following a vote of non-confidence on March 25th, 2011. However, given that this was the government’s third try at introducing similar legislation, which includes attempts by both Liberal and Conservative governments, it is likely that we will see similar or identical bills introduced in the future. The concerns expressed by the Privacy Commissioners are therefore still valid and will hopefully be considered by future Parliamentarians considering lawful access legislation.