Canada Privacy Law: Amendment Mimics USA Patriot Act, Critics Charge

Pipeda Privacy Law Patriot Act

The Huffington Post Canada   First Posted: 09/30/11 01:43 PM ET Updated: 11/30/11 05:12 AM ET

It's not exactly Canada’s very own Patriot Act, but a Harper government amendment to the country's privacy law has some experts seeing shadows of the controversial U.S. legislation.

Industry Minister Christian Paradis tabled an amendment to the PIPEDA privacy law on Thursday, hailing it as a step forward towards greater protection of Canadians’ online privacy.

Among the amendment’s provisions are a new rule requiring organizations to report data security breaches to Canada’s privacy commissioner, as well as some exceptions to privacy rules designed to make it easier for companies to carry out day-to-day business.

But what has privacy experts worried is a new provision that allows organizations to hand over personal information about individuals to law enforcement and private investigators without a warrant. And, when the law enforcement agency requests it, the organization can be forbidden from notifying the individual in question that their information has been passed on.

It’s that secrecy clause that has some privacy experts comparing the PIPEDA amendment to the USA Patriot Act, a massive law passed with little debate in the wake of the 9/11 attacks that civil liberties advocates have criticized as being a major expansion of the U.S. government’s ability to spy on private citizens.

"This particular amendment appears to create a provision similar to those in the USA Patriot Act," Vincent Gogolek, executive director of the B.C. Freedom of Information and Privacy Association, told CBC. He described the bill as containing “some real dangers.”

The USA Patriot Act’s secrecy provision is somewhat different from the proposed Canadian amendment. Under the U.S. act, law enforcement agencies can issue “national security letters” requiring organizations to hand over data about individuals. NSLs, as they are known, contain a “gag clause” that prevents the organization from notifying anyone that the request was made.

NSLs can be issued with no probable cause, can be used on individuals not suspected of any crime, and require no judicial oversight. However, a 2006 amendment to the Patriot Act allows judicial review of an NSL after the fact.

To some extent, Canadian organizations have already been handing over private information without court oversight. Most of the major Internet service providers hand over information about suspected child pornography downloaders without a court request. But the law enshrines and expands that practice, and provides legal cover for the companies handing over private data.

While few would argue the Canadian amendment is as extreme as the US provisions, privacy experts see it as the thin end of a wedge that could erode Canadians’ rights to control information about themselves, and could make law enforcement less accountable in its investigations.

The digital rights advocacy group OpenMedia described the amendment as a prelude to “lawful access” legislation, a series of bills the Harper government is expected to table that would allow for warrantless investigations of Canadians online, and would require Internet service providers to keep track of their subscribers’ web surfing activities.

“The amendment tabled today will only serve to undermine law-abiding citizens’ privacy rights,” OpenMedia Executive Director Steve Anderson said in a statement. “This bill -- and the warrantless online spying bills to come -- undermine reasonable expectations of privacy and serve only to weaken personal data security.”

OpenMedia writes:

PIPEDA already includes measures to allow online service providers to give government authorities the information they request. The amendment will free online service providers of any obligation to take even basic steps to ensure those requests are reasonable. ... [T]he amendment introduced today is an unnecessary expansion of powers.

PIPEDA, which stands for Personal Information Protection and Electronic Documents Act, was the brainchild of Jean Chretien’s Liberal government, which passed the law in 2000 as a reaction to rapidly changing digital technology and the privacy risks that came with it.

The law set out a series of privacy protections for individuals, including the right to know whether a company has shared an individual’s private information. Critics say the new amendment undermines that right.

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