Statement on the appropriate use of investigative powers, thresholds for authorization and privacy protections

Testimony before the Quebec Commission of Inquiry on protection of confidential media sources

Montreal, Quebec
April 5, 2017

Patricia Kosseim, Senior General Counsel and Director General, Legal Services, Policy, Research and Technology Analysis

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Introduction

Good morning, Commissioners. On behalf of the Privacy Commissioner, thank you for inviting me, and I hope that my testimony today will be helpful to your inquiry.  I am accompanied by Julia Barss and Christopher Prince from our Office.

I am Senior General Counsel for the Office of the Privacy Commissioner of Canada and I have held this position since 2006. I previously worked for other federal institutions after practicing at a law firm here in Montreal.

Our organization was created in 1984 to protect and promote the privacy rights of Canadians.

Our mandate stems from two pieces of federal legislation related to privacy—one for the public sector and the other for the private sector. I would first like to note that the collection, use and disclosure of personal information solely for journalistic purposes is excluded from our two enabling Acts.

Therefore, I am here today, at the request of the Commission’s counsel, to provide an overview of the legislation for protecting privacy in Canada, and more specifically, answer questions about lawful access issues from a federal perspective.

The question of metadata

In 2009, as you may recall, the federal government began a series of discussions about how police should go about gaining access to commercial data in the course of their investigations.

A series of legislative proposals offering police and other law enforcement agents new powers were introduced in Parliament in 2009, 2011 and 2013.

There was a spirited debate surrounding the conditions under which police could obtain access to telecommunications records, particularly regarding the various schemes and thresholds proposed.

Parliament debated questions about how to modernize investigative powers in a digital era, which agencies would be able to avail themselves of these new powers, and what sorts of information, kinds of crime or other activities authorities ought to be investigating.

Over the years, one position remained consistent among the proponents of the various bills tabled: that certain identifiers such as phone numbers or device details posed no privacy risks.

From that premise they argued that a technical piece of metadata, such as an IP address, MAC address or IMSI number, carried no reasonable expectation of privacy.

In their view, government investigators should be able to collect or query that data without a warrant. Needless to say, this was controversial then and is still controversial today.

In 2012, we began to research these questions in depth. We ultimately produced two reports, one specifically on what IP addresses can reveal from a technological perspective, and the other on metadata and the related legal considerations.

In 2014, we prepared a factum to the Supreme Court of Canada as an intervener in R. v. Spencer.

That same year, we advised Parliament on the potential sensitivity of metadata in connection with Bill C-13, which proposed adding new lawful access powers to transmission data to the Criminal Code.

Recently, we reiterated these concerns in a consultation on national security conducted by Public Safety Canada, which seemed to raise many of these questions again.

Thresholds for authorization of surveillance

In our various submissions, we warned against lowering the thresholds for authorizing the new investigative powers.

We noted the lack of accountability placed on the use of the powers and absence of conditions specific to their use.

In the end, Parliament passed the bill without amendment. The new powers came into force in March 2015. Despite this, police forces apparently are still not satisfied with these new powers and these questions continue to raise concerns for the government.

Conclusion

Moving forward finally to last year’s events here in Quebec, the Privacy Commissioner of Canada reviewed the new surveillance powers in some of his speeches this year.

He wrote an opinion piece for La Presse on the impact of these new surveillance powers that should be of concern not only to journalists for very specific reasons related to freedom of expression and protecting their sources, but to all Canadians who have nothing to hide.

I feel that this article is particularly relevant to your study. In conclusion, I would like to reiterate some of the points the Commissioner raised:

  • We should seek to limit rather than extend lawful access powers, particularly in light of the privacy risks, which are much greater than the innocuous analogy to telephone directories would lead us to believe;
  • We should maintain the crucial role of judges in the process of authorizing investigative powers in order to ensure the necessary independence of police forces, which will better ensure the protection of our most basic rights; and
  • The Canadian Parliament should consider legislating more specifically on the prerequisites for lawful access. It should also grant judges the possibility of attaching conditions for each situation, such as the protection of citizens who are not targeted, but still captured, by these measures, the period for which the information can be retained and the intentional destruction of non-pertinent data.

Thank you for your attention and I am happy to take your questions.

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