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Trudeau must honour promise to protect privacy and amend Anti-terrorism Act

We join every privacy commissioner in the country in saying that no compelling explanation has ever been provided as to why our previous laws were inadequate for national security purposes

By ANN CAVOUKIAN
MICHEAL VONN

Tues., Dec. 13, 2016

In the run up to the passing of the Anti-terrorism Act, 2015 (still branded as "Bill C-51"), huge rallies in protest were held across the country. A leading issue in the public protests was the unprecedented surveillance powers that would be created by Bill C-51 under a stand-alone statute called the Security of Canada Information Sharing Act (SCISA).

SCISA allows for personal information in any quantities, including entire databases, to be "shared" among a vast number of federal government entities for "detection, identification, analysis, prevention, investigation or disruption" of "activities that undermine the security of Canada."

The "undermining" of security (as opposed to "threatening" security) is a new concept in Canadian law. While we aren't sure just how far the concept extends, SCISA spells out that it includes activities far beyond those relating to public safety. It stretches to public life in general, including "the administration of justice," "the economic or financial stability of Canada" and even extends to activities that "undermine the security of another state."

The personal information of Canadians that is subject to this widespread and relatively unfettered disclosure includes information as sensitive as health information and tax information (Health Canada, Veterans Affairs and the Canada Revenue Agency, all being among the entities in the sharing scheme).

There is no question that SCISA is a fiasco from the perspective of Canadians' privacy rights, leaving only the question of whether it is nonetheless necessary for security. While information-sharing is necessary for national security purposes, the previous law already made provisions for that.

We join every privacy commissioner in the country in saying that no compelling explanation has ever been provided as to why our previous laws were inadequate for national security purposes, let alone why a "blowing-open-the-barn-door" approach is the appropriate remedy.

SCISA has compounded a crisis in public confidence about surveillance in Canada. Against a backdrop of already existing surveillance concerns, this fall's public consultation on the National Security Framework for Canada has been regularly punctuated by bombshell revelations of fresh surveillance scandals: A decade's worth of CSIS violating its duty of candour to the courts when seeking secret warrants; a decade's worth of CSIS illegally collecting metadata; unspecified years of having literally everything ingested into the CSIS bulk data holdings, potentially illegally ("no evidence to indicate that CSIS had appropriately considered the threshold as required in the CSIS Act").

At multiple National Security Consultation events, a worrying trend has been heard from public officials: Bill C-51 is now too enmeshed in the system to untie, so we should just think about how to make things better "moving forward."

The "moving forward" solution most readily offered is "accountability." That is, we are being encouraged to resign ourselves to the granting of these radically expanded, unprecedented powers to national security agencies, and make do with providing comments on how we might do a better job of making sure that they follow the rules.

While we reject this proposition, it is not entirely surprising. To quote from the recent joint submission of Canadian Privacy Commissioners, it is a lesson learned that, "once conferred, new state powers are rarely relinquished."

But it may not be possible to "fix' the serious dangers of recklessly overbroad surveillance powers through an accountability mechanism alone. No committee, no oversight body, however constituted, can make amends for powers that have no claim to being proportionate and demonstrably necessary. The powers granted under SCISA were never justified.

Recall that the U.K., one of our partners in the Five Eyes intelligence alliance, has just introduced the Investigatory Powers Act (a.k.a., the Snooper's Charter), said to be the most sweeping mass surveillance legislation of any democratic country. It is clear that Canadians will need to be staunch in our opposition to what otherwise will assuredly be a race to the bottom on spying of one's citizens.

We will not do that by small tweaks to the powers that never should have been granted in the first place. We will not do that with wishful thinking about how "accountability" will ride to the rescue. We will do that by calling for the repeal of the unnecessary and dangerous Security of Canada Information Sharing Act.

We call upon Prime Minister Trudeau to step up and honour the promises he made to amend C-51. Better still, repeal it entirely!

The short-sightedness of the government in supporting Bill C-51 in its present form will not only compromise the privacy of Canadians, but in the long run, will also diminish our freedom and our ability to innovate and prosper as a nation.

Ann Cavoukian, Ph.D., is the executive director of the Privacy and Big Data Institute at Ryerson University. Micheal Vonn is policy director of the B.C. Civil Liberties Association.
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