Friday, February 13, 2009

Still shuddering

First the good news...the Privacy Commissioner is on the job. She is immediately speaking up on the Conservatives' coming effort to enact eavesdropping legislation:
"My concerns are a huge increase in surveillance powers," said Ms. Stoddart, who has been raising objections since such an update was first proposed in legislation in 2005 by the Liberal government of Paul Martin. The commissioner, who has had general discussions with federal officials and has been monitoring developments in other countries, said she expects to be consulted on any federal legislation.

"The [obtaining] of a warrant for looking into people's private papers, private affairs, now e-mail conversations is a basic tenet of our democratic and constitutional rights in Canada. To erode this is a very serious step toward mass surveillance so I would like to get a copy of any draft legislation and look at how this could be possibly justified. I've said in the past I've seen no compelling argument put forward for its justification."
Sounds like the opposition will be taking a similar hard line:
Opposition critics said they share the commissioner's concerns and would want to see the details of any legislation before taking a position.
The proposed legislation from Liberal Marlene Jennings, however, contains a proposal that appears to be setting the bar low in terms of privacy: ...the Jennings bill would require ISPs to disclose customer name and address information to law enforcement without court oversight (via mattbastard). Even Stockwell Day has previously committed to court orders as a requirement, as Michael Geist notes. The Globe report does state that Jennings' bill would "...allow police to "intercept communications and to provide subscriber and other information without unreasonably impairing the privacy of individuals." Suggesting some means of assuring that doesn't happen. So let's not lose hope on that yet.

But the bad news today is that an Ontario Superior Court judge has made exactly such a ruling requiring no warrant in a case involving child pornography that could have wider implications:

An Ontario Superior Court ruling could open the door to police routinely using Internet Protocol addresses to find out the names of people online, without any need for a search warrant.

Justice Lynne Leitch found that there is "no reasonable expectation of privacy" in subscriber information kept by Internet service providers (ISPs), in a decision issued earlier this week.

The federal Personal Information Protection Electronics Documents Act permits ISPs to provide this information to someone with "lawful authority," which Judge Leitch interpreted as meaning a police officer and not requiring a court ordered warrant.
With respect, that sounds like an interpretation begging to be challenged. We'll have to see how other courts treat this ruling, whether it's applied or distinguished given its facts as a child pornography case. But you can see the potential for abuse. We don't even need the Conservative (or Jennings) legislation to get to privacy violations, sounds like the police have just been handed a licence to obtain this information at the onset of a criminal complaint without a court order. While the ruling could be limited to child pornography cases, then again, it might not be. And for anyone thinking, well, if you don't engage in criminal activity, then why would we care about the police getting this information without court orders? The answer is the potential for abuse, pure and simple, of such powers when there's not the proper oversight. It happens.

So yes, three cheers for the Privacy Commissioner, but the ground seems to have just shifted in a big way.