The Harper government’s Digital Privacy Act is being billed as “protection for Canadians when they surf the web and shop online,” but critics say it amounts to a wholesale threat to the privacy rights it ostensibly aims to enshrine.
Bill S-4, as the proposed legislation is officially known, 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, writes digital law professor Michael Geist.
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.
But under bill S-4, sharing subscriber data would not be limited to investigations of possible unauthorized downloading. It could be used in defamation cases, commercial disputes and consumer disputes, Geist writes -- virtually any time an organization wants to investigate something of a legal matter, they would be able to get subscriber data from telecoms.
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The bill comes as the government seeks to pass another item of legislation, an “anti-cyberbullying bill” that critics say grants immunity to telecom companies that share subscriber data without a warrant.
Taken together, the two bills create a “stunning” framework that allows virtually any organization to collect data from telecom firms, while protecting the telecoms from accountability, Geist argues.
Digital law expert David Fraser, a partner at McInnes Cooper, told the National Post Bill S-4 could make it easier for copyright holders “to extort payments from users” because it would eliminate court oversight, in many cases, of copyright lawsuits.
For instance, in the recent case in whih Voltage Pictures targeted customers of TekSavvy over unauthorized downloads, an Ontario court allowed subscriber data to be given to Voltage, but placed restrictions on what Voltage can demand when it contacts alleged copyright infringers.
"If Bill S-4 were the law, the court might never become involved in the case," Geist writes. "Instead, Voltage could simply ask TekSavvy for the subscriber information, which could be legally disclosed (including details that go far beyond just name and address) without any court order and without informing their affected customer."
Industry Canada defended the bill in an email to iPolitics, saying that individuals will have the right to complain to the privacy commissioner if they feel their information is wrongly shared.
But Geist and others, such as David Christopher of the digital rights group OpenMedia, argue this logic is circular. Because the law allows telecoms to keep the sharing of data secret, affected subscribers won't know if their privacy has been violated, they say.
Geist notes there are some positive elements in the legislation, such as a regulation requiring companies to disclose security breaches that put people at risk of identity theft. Such rules are commonplace in other countries, and are “long overdue” in Canada, Geist writes.