Omnibus Police Powers Ignore Privacy Commissioners

By Tim Lash

The Conservative party intends to introduce internet surveillance that will harm democratic freedom and accountability, and chill investigative and critical journalism. The majority Conservative government can make it happen in 100 days if the opposition parties and public aren't alert. This note follows a look into the websites of Jennifer Stoddart, Federal Privacy Commissioner, and Michael Geist, Professor of Internet and E-Commerce Law.

In the 2011 campaign most internet policy debate was on cost and competition issues between users and telecoms; usage-based billing, rural availability and foreign ownership. But the real society-changing issue is between individuals’ privacy on the internet and the expansion of state surveillance of internet without the usual judicial control. This “legal access” issue, as stated in Bill C-52, hasn’t been aired in the House or the main media.

Continuous surveillance without a warrant is a new police power promised in Harper's omnibus crime bill within 100 days if backed by a Conservative majority. But many voters have strong principles of individual independence and freedom from big brother-type government interference and control. Privacy is a fundamental human right that enables the freedom of association, thought and expression. We face a threat to Canadian society and a fundamental question that is not being addressed effectively.

All Canada's Privacy Commissioners and Ombudsmen say so, including Jennifer Stoddart, our internationally-respected Federal Privacy Commissioner. The Harper government has ignored them.  Dr. Michael Geist, the Canada Research Chair in Internet and E-Commerce Law, also says so. Parliament has not had a chance to discuss it. The legislation has been developing since 2005 when Harper took draft Bills over from their Liberal beginnings. Discussion by Parliament has been avoided, as it hasn't made it into Committee. It’s been legislatively delayed - gone away twice with prorogation, and again with the recent defeat of the government - only to be brought up again by the new majority, for passage in a rush among other things.

Canadians aren't used to distrusting our state authorities. We're vulnerable. The issue is constitutional, non-partisan, not along our usual left-to-right political spectrum. It resonates equally with true conservative values of individual freedom, sound liberal values of participation in a healthy and just society, and essential societal values of environmental sustainability.

The Conservative plank on expanding police and telecom internet surveillance - Bill C-52, the “lawful access" initiative - shows crippling contempt for Parliament, and so, contempt for Canadian citizens. On its way to introducing new surveillance and police power, it has avoided Parliament’s essential roles, and it dismisses urgent nationally-agreed advice to Parliament by the Privacy Commissioner. Secondly, without showing a need, it promises to reduce individual privacy and judicial authority relative to new police powers. It may conflict with the Charter of Rights and Freedoms.

Presently, Parliament represents us constitutionally; it's the ultimate body through which any PM is accountable to us. Jennifer Stoddart is our Federal Privacy Commissioner. She was recently reappointed to report directly to Parliament (not to the PM’s government of the day) for another three years. Privacy is recognized by our courts to be "a fundamental human right that enables the freedom of association, thought and expression". The legal regime that governs the use of surveillance in Canada protects individual rights while also giving authorities access to communications when properly authorized. The balance has been carefully refined over decades by Parliament and the courts:

From 2006-2009: the Tories pick up and reintroduce earlier Liberal bills on the subject. (Interesting that this long factual history, with analysis from a declared viewpoint, is posted on a world socialist site. There’s nothing like it in our mainstream internet paths, media and political party sites. Good things can found anywhere.)

September 2009: Canada's federal, provincial and territorial Privacy Commissioners unanimously alert Parliament that proposed new internet surveillance and police powers pose serious threats to privacy, and to the refined balance of individual rights with specifically warranted surveillance. Also, they claim that there is no evidence that new powers are needed. The Commissioners urge Parliament to:

  • approach the proposed legislation with caution;
  • oblige the government to demonstrate that any expanded surveillance and investigative power is essential and is justified; and
  • if they are, assure that each meets very specific requirements, limitations, and there is public scrutiny and periodic review.

From 2009 to March 2011: In order to respect the Privacy Commissioners' recommendations to Parliament, parliamentary debate and committee examination are required. However, the legislative bills are delayed without evident explanation while Parliament is in session, and they die when prorogation takes Parliament out of session. On March 9th 2011, the Privacy Commissioners repeat their earlier concern with more detail, pointing out the government’s lack of consultation with them. Meanwhile, Mr. Harper appoints enough party-dedicated Senators to carry the upper house.

April 2011: During the election campaign, while Parliament is not sitting, Mr. Harper promises that with a majority, he’ll bundle multiple related bills including C-52 together, to be passed within 100 days of Parliament re-starting. The new police surveillance power is presented as safeguarding children on the internet. But this goal is better achieved and improved using the existing balance plus child awareness. The proposed new extra-judicial police powers would apply to any communications, which goes beyond the stated purpose.

Parliament isn’t sitting to give the proposals the urgent careful scrutiny and debate Canadian Privacy Commissioners unanimously say they need. For the public, the vital changes are not present in the Conservatives' general campaign presentation, and are scarce in opposition attacks or platforms. On the specialist internet pages, and even in the radical rabble pages, the key issue of internet privacy has only barely surfaced among the more common consumers' issues of "open internet", usage based billing, etc. It is a hot issue in the US, in France, and elsewhere.

May 2011: In the 100 days following the resumption of a new Parliament with new members, it would not be possible to consult reasonably and respectfully with the Canadian public, nor with the federal, provincial and territorial Privacy Commissioners whose expertise, responsibilities and capabilities would be required. Not even if a majority Conservative government were to run the parliamentary committees with dispatch and cooperative probing of facts, purposes, alternatives and consequences.

This hidden change doesn't look accidental; not after repeated privacy alerts in 2009 and 2011. It fits Mr. Harper's pattern of strategic and tactical dismantling of Canadian democratic avenues of accountability and the reduction of federal capacities to steward and enhance Canada's social and environmental commons. It's a multi-partisan concern - and we're drowsy.

Without publicity, Mr. Harper has expanded executive powers to control and coerce, while making them less subject to public scrutiny, parliamentary accountability, or judicial authority. As the internet privacy issue gets better known, I expect people with a good conservative regard for individual freedom, and those with concern for a healthy and open society to withdraw support from the proposal. It's a threat to the protections of the Canadian Charter of Rights and Freedoms.

A minority government in the May 2nd election is a key to Parliament's ability to deal responsibly with this threat. Past the election, it still needs to be addressed publicly, with the wisdom of Canada's privacy commissioners.


Photo: By rpongsaj