Like the sugary coating of a bitter pill, nice-sounding words often cover bad ideas that people are encouraged to swallow.
Bill C-22 speaks soothingly about “facilitating access” to “basic information,” hiding its true nature as a big step towards the surveillance state. Bill C-22, the Lawful Access Act, will require Canada’s electronic service providers to violate our privacy by giving the confidential information of Canadians to police and other government officials.
However, the federal government describes Bill C-22 as merely amending various acts “to modernize certain provisions respecting the timely gathering and production of data and information during an investigation.” The claim is that the bill aims to “facilitate access to basic information that will assist in the investigation of federal offences,” and empower “public officers” (not merely police) to obtain the subscriber information of Canadians from companies in “exigent” (not defined!) circumstances.
If passed, Bill C-22 will enable government officials to “assist” Canada’s intelligence agency (Canadian Security Intelligence Service) in the “performance of its duties and functions.” The surveillance state ensures that police and other government officials obtain “basic information” about citizens quickly and easily, without those pesky privacy rights and annoying constitutional freedoms interfering with the noble mission of catching criminals and other enemies of the state.
In addition to “modernizing” various federal laws, Bill C-22 also enacts a brand new Supporting Authorized Access to Information Act. This new law will force electronic service providers to give the government quick and easy access to personal and private information of Canadians. The government describes this new act as establishing a “framework” for “ensuring” that electronic service providers, including (but certainly not limited to!) companies like Bell, Rogers, and Telus, “facilitate” access to information by “authorized persons.” Don’t worry: only an “authorized” person will be able to demand private and confidential information from internet service providers.
According to University of Ottawa law professor Michael Geist, while Bill C-22 is less bad than Bill C-2, there remain serious privacy concerns. Bill C-22 would require “core providers” to retain categories of metadata, including transmission data, for up to one year. This would include the date, time, duration, and type of a communication, the identifiers of the devices involved, and information that identifies the location of the device. The government could use this metadata to reconstruct a person’s movements over time through cell tower signals and other location identifiers. Telecom and electronic service providers would have to store information about the communications of all their users, not merely some suspected criminals that police are curious about.
Prof. Geist describes this as “one of the most privacy invasive tools a government can deploy,” and argues that Bill C-22 would result in “the blanket retention of metadata about the communications of every Canadian who uses a service provided by a core provider, with no regard for wrongdoing.”
Germany, the United States, and other countries have rejected the mandatory retention of metadata. Instead, these countries have laws which empower police, in the context of a specific investigation based on probable grounds of criminal wrongdoing, to demand the preservation of existing data, in respect of only the person(s) under investigation.
Canada likewise already has Section 487.012 of the Criminal Code: police can impose a preservation demand, requiring a company to preserve the computer data that is in the company’s possession, if the police officer has reasonable grounds to suspect an offence and intends to seek a warrant or production order. This is a targeted tool that applies to specific data in specific investigations, not (as proposed in Bill C-22) to all data held by all providers. Prof. Geist argues that “requiring mandated data retention for everyone as contemplated by Bill C-22 is excessive and raises serious privacy concerns.”
If passed in its current form, Bill C-22 would shift the relationship between Canadians and their communications providers, who would be required to retain data about everyone, rather than preserving data about specific individuals who are criminal suspects.
Thompson Rivers University law professor Robert Diab explains that Bill C-22 gives government “a new power to order our cellphone companies to preserve the metadata attaching to all of our calls, emails, and texts for up to a year,” including “precisely where and when we used our phones, and the coordinates of who we were in touch with at those times and places.” Only the actual content of our communications is excluded.
If Bill C-22 passes, then the government will effectively require Bell, Rogers, and Telus to, for an entire year, keep records of every time you use your phone and where you used it. In effect, “authorities” would always have access to your whereabouts. How creepy is that? This violates our Charter-protected reasonable expectation that our movements in time and space, and the details of whom we speak with and when, are private. Our Charter rights and freedoms include an expectation that this confidential information will not be preserved at the government’s behest and stored for lengthy periods of time.
Significantly, Bill C-22 does not include provisions to involve the Privacy Commissioner of Canada in providing oversight. This speaks volumes about the bill.
Bill C-22 is a building block of the surveillance state, in which Canadians become the objects of government analysis, modelling, manipulation, and control. The bill would force electronic service providers like Rogers and Google to develop and install the capacity for extracting and organizing information for government or law enforcement review.
Surveillance abuses human dignity. Power corrupts, and absolute power corrupts absolutely. Why would governments, once empowered with massive quantities of private and personal information about Canadians, not abuse this power to control us?
Only four years ago, the federal government directed financial institutions to freeze the bank accounts of Canadians who had donated to a peaceful protest that was detested by the prime minister of the day. These Canadians had not been charged with any crime, had not committed any crime, and were provided no due process or opportunity to defend themselves against this harmful and abusive conduct.
Privacy is the shield of a free people. Bill C-22 would replace that shield with a looking glass.
The onus should be on government to demonstrate with compelling evidence (and not merely to assert) that current laws are inadequate for fighting crime. When it comes to Bill C-22, the federal government has failed to justify its assault on our privacy.
John Carpay, B.A., LL.B., is president of the Justice Centre for Constitutional Freedoms (jccf.ca).
