March 6, 2015

The following is an op-ed on Privacy Commissioner Daniel Therrien’s concerns about Bill C-51, versions of which were published by two newspapers.

Privacy Commissioner raises concerns about Bill C-51

Daniel Therrien, Privacy Commissioner of Canada

The debate over the federal government’s new anti-terrorism bill is raising profound questions about the tension between privacy and security.

Most Canadians would agree that terrorism represents a growing threat and that we must respond with appropriate national security measures when new threats arise. But at what cost?

In my view, Bill C-51 in its current form would fail to provide Canadians with what they want and expect: legislation that protects both their safety and their privacy. The proposed legislation does not strike the right balance.

The scale of information sharing between government departments and agencies being proposed in this bill is unprecedented. The new powers that would be created are excessive and the privacy safeguards being proposed are seriously deficient.

All Canadians – not only terrorism suspects – will be caught in this web. Bill C-51 opens the door to collecting, analysing and potentially keeping forever the personal information of all Canadians in order to find the virtual needle in the haystack. To my mind, that goes too far.

This is really about Big Data, which relies on massive amounts of information that can be analyzed algorithmically to spot trends, predict behaviours and make connections. The implications for privacy are serious – especially when we are talking about the highly sensitive information that Canadians entrust to their government.

The legislation would allow for the personal information of Canadians to be shared if it is deemed “relevant” to the detection of new security threats. That’s an extremely broad standard that suggests the bar to permit the sharing of Canadians’ personal information has been set far too low. 

In this way, the Bill would provide 17 federal government agencies with almost limitless powers to monitor and profile ordinary Canadians, with a view to identifying security threats among them.

The end result is that national security agencies would potentially be aware of all interactions that all Canadians have with their government. That would include, for example, a person’s tax information and details about a person’s business and vacation travel. 

While the potential to know virtually everything about everyone may well identify some new threats, the loss of privacy is clearly excessive.

In a country governed by the rule of law, it should not be left for national security and other government agencies to determine the limits of their own powers.

We need to create clear and reasonable standards for what personal information may be collected, shared, used and kept.

We also need to ensure appropriate oversight and review. Currently, 14 of the 17 agencies that will receive information under the proposed law are not subject to independent oversight.

Either a new review body should be created or the mandate of existing review bodies should be expanded. I would also recommend a system that includes a separate Parliamentary review body.

Existing review bodies also need permission to share information amongst each other, which is not currently the case, and judicial recourse should be available to those who believe personal information has been collected, used, disclosed or retained improperly.

National security agencies have an important and difficult role to play in protecting us from terrorist threats – and I believe they strive to do their work in a way that respects human rights.

That being said, history has shown us that serious human rights abuses can occur in the name of national security. A commission of inquiry, for example, confirmed that national security information sharing led to the torture of Syrian-Canadian Maher Arar, while revelations by U.S. whistleblower Edward Snowden have shown that government surveillance programs can be extremely pervasive.

Bill C-51 requires significant changes. I have sent the Parliamentary committee reviewing the Bill a submission outlining my concerns along with a series of recommendations and I would welcome the opportunity to speak with Parliamentarians about my concerns in the near future.

I hope that the government will listen to the concerns that are being raised – not just by me, but by many eminent Canadians – and that it will amend Bill C-51 to ensure it respects our privacy rights.

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