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November 9, 2016

The following is an op-ed by Privacy Commissioner Daniel Therrien regarding recent media reports about electronic surveillance of journalists, versions of which were published by two newspapers.

Media surveillance highlights privacy risk to all Canadians

By Daniel Therrien, Privacy Commissioner of Canada

Canadians have reacted with healthy dose of indignation to recent revelations that journalists have been subject to electronic surveillance under warrants issued as part of police investigations.

Governments have also moved quickly to respond. Quebec announced the creation of a commission of inquiry and the federal government has indicated it is open to strengthening rules that protect freedom of the press.

However, the threat highlighted by this controversy is not limited to press freedom. 

The privacy of all Canadians has been put at risk following Parliament’s adoption of Bill C-13, the Protecting Canadians from Online Crime Act, which made it easier for police to obtain electronic surveillance warrants.

We don’t yet know all the facts surrounding the authorization of warrants targeting Quebec journalists. However, it appears some of these court orders permitted the collection of metadata, which is information related to telephone or electronic communications, including telephone numbers, IP addresses and location data, but not the content of communications.

Among other changes, Bill C-13 sought to ease the requirements for obtaining warrants for metadata on the grounds that this information is much less sensitive than the actual content of electronic communications.

However, we now understand that metadata can reveal sensitive information, including the identity of journalistic sources. Studies by academics and by my office have also shown that metadata can reveal very sensitive information about an individual, for example, someone’s sexual orientation, religious beliefs, political leanings, or the fact that a person suffers from a mental health issue.

Recent events also demonstrate the fact that warrants for metadata are not exclusive to individuals suspected of criminal activity. These warrants can involve innocent people believed to have had contact with a suspect under investigation for reasons that may have nothing to do with the commission of a crime. 

The federal government’s recent discussion paper on national security suggests loosening even further the rules allowing police to obtain metadata. One of the options put forward by the government opens the door to warrants for certain metadata to be authorized, not by a judge, but by “senior public officers.”

In my view, recent events show that standards should, in fact, be tightened and that privacy protections for innocent individuals need to be enhanced.

It is important to maintain the role of judges in the authorization of warrants for the collection of metadata by law enforcement. Despite its imperfections, the judicial system ensures the necessary independence for the protection of human rights.

But we also now know that it is probably not enough to rely solely on the judiciary. Indeed, some judges have made this point themselves.

In a recent ruling, Ontario Superior Court Justice John Sproat found he did not have the power to impose privacy protective conditions on a production order involving the metadata of thousands of individuals who happened to be within the vicinity of a number of crimes. He said this responsibility rests with legislators.

I also believe that it is incumbent on Parliament to better define the conditions under which the sensitive metadata of Canadians should be available to police forces.

To start with, these standards should clarify the conditions that must be met to obtain a warrant or court order. For example: What should be the burden of proof required of police – a mere suspicion of wrongdoing, or the higher threshold of reasonable belief? Should the collection of metadata be a last resort; available only when all other investigative techniques have been exhausted? And should this type of surveillance be limited to only cases involving serious crimes?

In cases where those pre-conditions are met, the standards could then enable judges to attach conditions to protect the privacy of people who are incidentally targeted by a warrant, but are not suspected of involvement in a crime. For example, metadata related to communications that have no connection with criminal activity should be destroyed without delay.

Canadians want police to have the means to protect them, but they also want their rights respected. They have been shocked to learn just how easily law enforcement can access personal data transmitted via modern telecommunications, apparently without sufficient consideration of their fundamental rights.

Canada’s Parliament has an important role to play in preventing such violations of the right to privacy.

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