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Government: Update Investigative Techniques, Not Privacy

The Government is willing and eager to update police surveillance laws in order to meet challenges posed by new technological changes, but when asked by the Privacy Commissioner of Canada and the House Standing Committee on Access to Information, Privacy and Ethics to update the Privacy Act so that existing privacy protections will apply to new forms and uses of information, the answer was no.


The Government has loudly and repeatedly stated that our police surveillance laws need to be updated in order to meet new challenges posed by new technologies. In new proposed 'Lawful Access' or police surveillance legislation, the government points to rapid increases in technology as justification for an unbridled expansion of police powers.

BUT, when the Privacy Commissioner of Canada (OPC) and the House Standing Committee on Access to Information, Privacy and Ethics (ETHI) ask the government to update its Privacy Act so that it continues to apply to new government information gathering capacities and practices, the Government's response is that the current existing regime is 'sufficient' to address the Privacy Commissioner's concerns.

ETHI in its official recommendation #7 to government had asked the government to update the definition of 'personal information' found in s.3 of the current Privacy Act as one of several 'quick fixes' required to bring the 26 year old statute into the modern world. The current definition, crafted in the budding age of computer technology, is limited to 'recorded information', yet new technologies allow government organizations to collect and use a vast and increasing amount of private information in unrecorded format.

ETHI pointed to the testimony of a host of experts, including David Flaherty, Paul André Comeau, Professor Michael Geist, and Gregory DelBigio and David Fraser from the Canadian Bar Association in support of the recommendation to update this definition. These experts point out that rapidly developing technologies are allowing government organizations to collect personal information in greater amounts and in new and unforeseeable mediums.

The CBA points out that at the time the current Act was drafted, "technologies for data matching, biometrics, genetic information, the decoding of the human genome, portable electronics, surveillance, video surveillance, and GPS" had yet to be developed. Many of these can be collected and used in 'unrecorded' format. Professor Geist emphasizes the fact that technologies will continue to develop along these lines and a far more technologically neutral definition of 'personal information' is necessary if the Privacy Act is to continue to apply to the principles it was enacted to protect.

As ETHI point out, the Privacy Act is a 'first generation' privacy statute, drafted when privacy and technology concerns were first emerging in a serious manner. PIPEDA, a 'second generation' privacy statute that applies to the private sector, is far more evolved in its approach to fair information practices.

In rejecting the new proposed definition of 'personal information' Minister of Justice Rob Nicholson points out (briefly) that one cannot export norms from the private sector to government practices. However, this is not what is at issue with this recommendation. The two Acts impose different sets of obligations already and whether that is desirable or not is a separate question. The main issue with this particular 'quick fix' is whether the existing information practice obligations in the Privacy Act should apply equally to new and evolving forms of information gathering, as they do in PIPEDA. The answer from government? No.

Meanwhile, Bill C-47, entitled the 'Technical Assistance for Law Enforcement in the 21st Century Act' also waves the banner of 'technological change', and is being rushed through committee so that police surveillance powers can be updated without delay. But, in contrast to the updates requested by ETHI and the OPC for the Privacy Act, Bill C-47 is a badly tailored piece of legislation that provides police with sweeping powers that bear only the loosest of relations to the technological developments they are intended to address and have little regard for the privacy of Canadians.

The message emerging from government appears simple: New technologies need to be accounted for in our laws, but when it comes to police powers, this is a one-way street. Canadians should be concerned that, if they aren't careful, their privacy rights will get lost completely by the wayside.