For the second time this year, Public Safety Minister Vic Toews has found himself at the centre of a major privacy backlash. In February, Toews was the lead on Bill C-30, the Internet surveillance legislation that sparked a huge public outcry that forced the government to shelve the bill within ten days. While Toews maintains the legislation will return (and implausibly argues that it could have assisted in the Magnotta investigation), it hasn't moved in months.

The toxic connection between Toews and privacy escalated over the weekend with a report that Canada Border Services has installed surveillance equipment in the Ottawa airport that will allow for eavesdropping on traveller conversations. The report led to immediate questions in the House of Commons with Toews defending the practices and even revealing that the eavesdropping activities may be more extensive than initially reported.

A day later, Toews was backtracking, announcing that the eavesdropping plans were on hold pending a review from the Privacy Commissioner of Canada.

That's a start (the federal commissioner's office expressed concern that no privacy impact assessment (PIA) has been filed), but frankly it isn't nearly good enough to address the privacy concerns associated with this issue.

Over the past couple of days, there has been far too much emphasis placed on process and not nearly enough on privacy. While a PIA may be useful, the concerns with traveller surveillance are about far more than following the right process:

1. The CBSA has suggested
that similar audio-visual surveillance is already
in place in other airports without privacy impact assessments or public notices.

2. It appears the CBSA will have the capability of eavesdropping on conversations even though there is no evidence or even suspicion of wrongdoing.

3. The CBSA seems to think that a website notification is good enough to meet reasonable notice requirements.

As Ontario Privacy Commissioner Ann Cavoukian rightly notes, a website notice is completely unacceptable as a notification in the area where the conversation is being recorded is needed. Further, David Fraser argues that though details are still limited, the plans seemingly run counter to established Canadian law and could be subject to a constitutional challenge.

While it is impossible to provide a complete analysis given the still-limited details, we don't need a privacy impact assessment to know that unlimited, warrantless eavesdropping on Canadians in major airports should simply be a non-starter. Canada doesn't eavesdrop on private conversations without court oversight and reasonable and probable grounds to do so. That should remain true regardless of the location. Further, privacy impact assessments are not even binding, making it entirely possible that the government will simply ignore the Commissioner's recommendations (much as they did with Bill C-30). In fact, given this week's revelations, the Commissioner should not wait to receive a proposal for review. The law gives her office audit powers, which should be used immediately to conduct a full scale review of current border audio and video surveillance. Canadians have faced two serious threats to their privacy in recent months. There is no
reason to wait for a third.

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