It was a simple enough argument to understand at the time. Then-industry minister Tony Clement spelled it out – “a little bit rhetorically,” as he put it – for his colleagues in the House of Commons in September 2010. If someone in Canada did not want to fill out a 40-page long-form census brimming with “personal, private” questions about things like who they are, what they believe, or “about their day-to-day routines” was it really appropriate that the government harass them until they do, or threaten to send them to jail? No, Clement said, it was not.
And yet, he went on, that was clearly what the other federal parties believed.
Well, sort of. It was at least true that they opposed making the mandatory long-form census a voluntary survey from the moment Clement announced the change earlier that summer. In fact they were still opposing it moments before Clement stood to talk that day. Liberal MP Carolyn Bennett had just finished calling the decision to eliminate the mandatory census “an attack on reason.” Before her, Maria Mourani, then a Bloc Quebecois MP, said the move was “nothing more than the government’s underhanded way of ensuring that the facts are less reliable in the future, so that it can continue saying whatever it wants about any topic” without ever being contradicted by Statistics Canada.
Clement was duly shocked and saddened by the opposition.
“What I find most profoundly disappointing in the course of this debate over the last couple of months is the casual acceptance of coercive tactics to acquire more and more personal information from Canadians,” Clement said. “It is a form of data farming.”
His colleague, Conservative MP Mike Wallace, agreed later that day. The “opposition coalition” wasn’t concerned with that kind of information gathering. Under their rules, he said, “data at all costs trump the personal rights of Canadians.”
It all sounded terrifying. But what became of that fear? I ask because an odd thing has happened: The government that so stridently defended the privacy of ordinary Canadians just four years ago – railing, as Clement did against any attempts to simply roll over and allow our precious personal information to be collected en masse and stored in huge bureaucratic servers for God knows who to examine at will, or worrying, as Wallace did, that data collection might be more important than individual rights – is virtually the same one we have today that’s pushing through legislation to do something theoretically rather similar.
Earlier this spring, it emerged that federal agencies ask telecommunication companies, social media sites, and internet providers for information on Canadians over one million times every year – an average of once every thirty seconds. For the most part, the companies wouldn’t provide specific details about whether warrants were presented to obtain that information, despite being asked to do so by the federal privacy commissioner. Still, one case we do know of was striking as an example. The Canadian Border Services Agency received data on Canadians 20,000 times in one year, and a warrant was not sought 99% of the time.
The government’s latest anti-cyber-bullying bill, C-13, would conceivably make that warrantless request practice even more frequent and, if it’s actually possible, even less transparent. Under the new law, companies that “preserve personal information or disclose it without a warrant, are immune from any criminal or civil liability (including class action lawsuits),” according to privacy expert and University of Ottawa professor Michael Geist. “Even where there is court oversight for access to metadata or tracking information, the threshold is lower than for other conventional warrants.”
It all hangs on re-worked language in the criminal code. Presently, the law asserts that no warrant would be necessary from a peace officer who was “enforcing or administering” the criminal code or any other federal law. Bill C-13 removes that provision. “It simply opens the door to requests for voluntary assistance for any reason whatsoever,” Geist wrote. In other words, a peace officer won’t necessarily have to be enforcing the law to look at your information – they might just be curious. And, if you ever found out that a company handed over your data without seeing a warrant, there’s effectively no legal recourse against it.
What’s all that got to do with cyber-bullying? Good question.
On its face, C-13 is designed in response to the deaths of Rehtaeh Parsons, Amanda Todd, and Todd Loik, all teenagers who committed suicide (Parsons died in a hospital after being taken off life support) following endless online bullying and extortion. If ratified as law, C-13 would create a new offense in Canada’s criminal code “of non-consensual distribution of intimate images” along with ways to authorize the removal of those images from the internet. And it doesn’t get much argument there. Most observers agree that C-13’s provisions for tackling cyber-bullying are justified.
It’s just practically everything else in the bill that’s a problem. Not that you’d know it by listening to those same Conservatives. When Liberal Sean Casey noted the provision in C-13 that removes legal recourse against companies that hand over data without seeing a warrant and thus, he argued, any incentive for those companies to ask for one, Wallace, that champion of Canadian rights, dismissed it.
“That is a huge stretch and it is just not accurate,” Wallace, who is these days chair of the House justice committee reviewing C-13, replied. Why? “In any criminal activity right now, a Canadian, whether a company or an individual, has the right and the opportunity to voluntarily support the police in an investigation,” Wallace argued, failing to address the remark. Instead, he said, all bill C-13 does “is try to encourage businesses to actively and proactively support finding the culprits that are carrying out criminal activity against our youth.”
Carol Todd, Amanda’s mother, is among those not buying it, and asking the government to split the bill in two – one to contain the cyber-bullying provisions, with another created for the surveillance ones.
“We should not have to choose between our privacy and our safety,” she told Wallace's justice committee this spring. “We should not have to sacrifice our children’s privacy rights to make them safe from cyber-bullying, sextortion, and revenge pornography.”
She’s right. And yet, we are. As the spring session of parliament winds down and MPs stay long into each night to wrap up their work, bill C-13 is close to passing through the House of Commons on its way to the Senate, and one step nearer to becoming law. And across the country, no protests. No push-back. Instead, we seem to have a casual acceptance of coercive tactics to acquire more and more of our personal information.
We should listen to Tony Clement of 2010, and so should the rest of his party. We ought to be more afraid.