Online privacy decision means 'back to the drawing board' for Tories

The Conservative government is going to have to go "back to the drawing board" on its cyberbullying and digital privacy legislation following Friday's Supreme Court decision, the head of the Canadian Civil Liberties Association says.

Sukanya Pillay, the executive director of the Canadian Civil Liberties Association, said the Supreme Court decision affirming privacy rights will affect legislation in front of Parliament that would enshrine warrantless access powers and protect businesses that turn over customer information to police.

"This decision is basically saying you can't do that," Pillay said in an interview with CBC News.

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"I think that they will have to take it back to the drawing board. I think that this decision sends a clear signal that warrantless access is not allowed."

A number of groups have raised concerns about Bill C-13, which the Conservatives refer to as the cyberbullying bill, but which includes a number of elements from the controversial Bill C-30 that aimed to expand police internet search powers. Privacy experts and others have also raised concerns about Bill S-4, the digital privacy act, which would update the Personal Information Protection and Electronic Documents Act, or PIPEDA.

Police say they need the powers laid out in the cyberbullying bill, which many have recommended the government split so that the privacy issues can be dealt with separately.

Cyberbullying bill 'absolutely' needs rewrite

Ontario privacy commissioner Ann Cavoukian said the ruling "absolutely" means Justice Minister Peter MacKay has to rewrite the cyberbullying bill.

During an interview with CBC Radio's The House, to air Saturday at 9 a.m., Cavoukian says the charter trumps bills in front of Parliament.

"We'll see how Mr. MacKay proceeds with this, but I can't believe that C-13 will now just go through and be passed without any due scrutiny in light of this amazing decision," Cavoukian said.

The ruling allows for warrantless access under certain circumstances where there isn't time to get a warrant, Pillay said, if there's a risk of imminent harm

"The Supreme Court of Canada has recognized that, look, there's a huge accountability gap here and they've plugged it, and that's fantastic," she said.

The Canadian Civil Liberties Association​ is challenging the provision in PIPEDA that allows for warrantless access.

Will 'certainly slow down' investigations

The ruling means there would be a day or two delay in investigations, Sgt. François D'Aoust said. D'Aoust works in the Ottawa Police Service's Internet Child Exploitation Unit.

"I was a little bit disappointed in the Supreme Court of Canada's decision today," he said. 

"However, we have to respect the decision of the Supreme Court of Canada and we will make it work and we will continue to investigate and arrest these predators."

D'Aoust said the Ottawa police make about two requests a week to internet service providers. The police usually get the information from the ISPs within a day or two, he said. Having to draft a warrant and have it signed by a justice of the peace or judge could double that time.

"It'll certainly slow down many of our investigations, however, we will develop new policies and new procedures that will ensure that it will not affect any future cases," D'Aoust said.

Spokespeople for Justice Minister Peter MacKay and Industry Minister James Moore said the government is reviewing the ruling.

'Far more revealing'

Privacy lawyer David Fraser agrees the ruling is likely to create another hurdle for police. But he says the government should compensate by putting more resources into the legal system.

"You can't simply make it more efficient by eroding our privacy rights. The Supreme Court was pretty clear with that," he said in an interview with CBC News.

The court's decision, Fraser said, should force the Conservatives to rethink the cyberbullying and digital privacy bills.

"It certainly gives real weight and additional credence to those who have appeared in front of the parliamentary committee saying hold on a minute, you're not taking proper account of the privacy interests here," he said.

Daniel Therrien, the newly appointed privacy commissioner, said in a statement that he encourages parliamentarians to "carefully consider the implications of this ruling," which he said are important.

"In particular, [the ruling] confirms that an immunity clause that protects a person who voluntarily discloses personal information to police does not in itself constitute any 'lawful authority' for the state to obtain that information under Canada’s federal private sector privacy legislation," Therrien said.

The charter, Cavoukian said, guarantees the right to be secure from unreasonable search and seizure.

It's inaccurate to say subscriber metadata held by internet service providers is no different from what one would find in the phone book, she said, because metadata allows online activities to be linked.

"It is far more revealing than just phone book data," she said. Metadata "can actually be far more revealing than accessing the actual content of a communication."