Bill S-4 Passes Senate, Despite Supreme Court Ruling Against Warrantless Access

The Supreme Court of Canada last week declared that access to telecom subscribers’ personal information requires a court warrant.

This week, despite a warning from Canada’s privacy commissioner, the Harper government is moving ahead with legislation that greatly expands warrantless access to subscriber data.

It’s a move that e-commerce law expert Michael Geist describes as a “head in the sand approach.”

The Senate on Monday passed Bill S-4, known as the Digital Privacy Act, Geist reported on his blog. The bill, which has yet to pass the House of Commons, is meant to enhance privacy online, but privacy experts say it could end up doing the opposite.

S-4 is being sold as “protection for Canadians when they surf the web and shop online,” and critics have lauded certain parts of the bill, such as those that would give the privacy commissioner greater powers and establish new penalties for privacy breaches.

But critics say corporations would gain access to the private data of telecommunications users. The law would allow internet service providers to share subscriber information with any organization that is investigating a possible breach of contract, such as a copyright violation, or illegal activity. Telecoms would be allowed to keep the sharing of data secret from the affected customers.

The bill could also remove court oversight of copyright lawsuits against Canadian consumers, potentially setting up the sort of “copyright trolling” seen in the U.S., in which music and movie rights holders often demand tens or hundreds of thousands of dollars from individual downloaders.

Experts such as Geist and Canada’s privacy commissioner say the Supreme Court’s decision means Bill S-4, as well as some other privacy-related legislation, need to be rewritten.

“We would encourage Parliamentarians to carefully consider the implications of this ruling as they deliberate on Bill C-13 [the anti-cyberbullying bill] as well as Bill S-4, the Digital Privacy Act,” the office of the privacy commissioner said in a statement.

The Supreme Court ruled last week that police need a search warrant if they want Internet providers to reveal a subscriber’s identity. The court argued Canadians have a “reasonable expectation” of privacy when they surf the internet.

That’s not the view of government officials, who argue basic subscriber data is public. A Justice Department official testifying before a parliamentary committee likened taking subscriber data from telecom to a police officer jotting down the licence plate number of a suspected drunk driver.

If various reports and leaks of government documents are to be believed, the Supreme Court’s ruling could have widespread implications for how law enforcement and telecoms share private information.

A recent transparency report from Rogers Communications revealed the government had asked the company for subscriber data 175,000 times last year, with about 100,000 of those requests being warrantless.

With such frequent requests (requests for Rogers subscriber data work out to about 480 per day), it’s possible or even likely that the handover of data between telecom and law enforcement is automated in some way.

There is evidence that some telecoms are giving automated access to law enforcement to their subscriber databases. In documents provided to NDP Charmaine Borg, the Competition Bureau referred to accessing the “Bell Canada Law Enforcement Database.”

Such practices could be found unconstitutional, given the Supreme Court’s ruling last week.

“The government’s decision to rush the legislation through the Senate (it conducted only a few hours of hearings) and to seemingly ignore the Supreme Court’s decision creates further uncertainty for Canadians and Canadian businesses,” Geist wrote.

The country needs rules that comply with the Supreme Court decision, and “S-4 fails to do so,” he added.