Canada has some crazy laws too. I kind of was thinking of Canada where I was born as the ‘friendly’ nation to the north but it seems not to be true :(.
Before privacy laws or the Charter, there was little if anything to stop police or national security operatives from cajoling or coercing information from private sector organizations. A civic-minded government department or company could blab all it wanted about its customers or employees.
Our privacy laws changed this, although they didn’t really try to put a stop to it. In BC, our public sector privacy law gives public bodies discretion to disclose personal information for law enforcement purposes, without warrant, but there are (some would argue, weak) constraints on this. The same can be said for our private sector privacy law. Still, these laws, together with the Charter, have until recently insulated against over-enthusiastic private sector co-operation with all and sundry state inquiries. Is this still true? If it is, how long will this last?
After the 9/11 attacks, governments everywhere felt compelled to act, and to be seen to act. This was in an important sense responsible of government. It was also mandated by political Darwinism. But a profoundly important aspect of the post-9/11 changes is the blurring of lines between collection and use of personal information for law enforcement purposes under criminal and other penal laws and use for national security purposes. A defining characteristic of police states is the blurring of distinctions between law enforcement and national security functions, the danger being that the rule of law eventually gives way to arbitrary decision-making by law enforcement authorities and the rights of ordinary citizens lose meaning. Democracies depend on clear and effective rules suited to the state activities that the rules are intended to govern and that reflect the essential values of a free society.
In Canada, post-9/11 amendments to the Customs Act and regulations authorize officials to require private sector organizations to provide border officials with extensive advance information about arriving passengers. These changes expanded the federal government’s ability to use and share that information, not only for national security purposes, but also for ordinary law enforcement and other purposes, including (according to government statements in 2002) public health surveillance. The information-sharing authority includes a broad ability to share personal information about Canadians and others with foreign governments. The amendments don’t restrict information-sharing arrangements to national security uses they could easily include ordinary law enforcement or other purposes defined on a case-by-case basis or in an agreement with another nation.
Also, Public Safety Act amendments to the Aeronautics Act allow the RCMP Commissioner to require any air carrier or operator of an air reservation system to, for the purposes of transportation security, disclose specified information in its control to any person the Commissioner designates. Despite the Public Safety Act reference to transportation security, the amendments allow this data to be matched with other data and to be disclosed to assist in executing certain outstanding arrest warrants. This effectively compels the private sector to assist the state, in the absence of a warrant or court order, in surveillance of all air travellers for the broader general purposes of both national security and ordinary law enforcement.
Consistent with these powers to conscript the private sector into both national security and law enforcement activities, Public Safety Act amendments to the Personal Information Protection and Electronic Documents Act (PIPEDA) permit private sector organizations to collect personal information without an individual’s knowledge or consent in circumstances that amount to an invitation to, and in some cases compulsion of, the private sector to assist the state in surveillance for both general national security and ordinary law enforcement purposes.
The Public Safety Act also amended the Proceeds of Crime (Money Laundering) and Terrorist Financing Act to authorize the Financial Transactions and Reports Analysis Centre of Canada to collect information it considers relevant to money laundering or financing of terrorist activities from publicly available information, including commercially available databases. FINTRAC is also authorized to obtain, under information-sharing agreements, information maintained by federal or provincial governments for law enforcement or national security reasons.
FINTRAC expanded powers point to the fact that, when it comes to co-opting the private sector, 9/11 can’t be blamed for everything. Laundering of dirty money was of sufficient concern before 9/11 to lead to extensive transaction-reporting requirements for banks and others. You can easily find other examples of legislative responses to individually pressing policy challenges that draft private sector organizations into state service in the name of public safety or order. One example is the current federal government lawful access proposals, some of which would apparently require ISPs to hand over at least identifying customer information and perhaps more on simple request by state officials, and for a pretty broad range of uses.
Also, at the local level, at least in BC, we see more and more local government bylaws compelling businesses to hand customer information over to police for a variety of reasons. Pawnshop reporting requirements have been around for a long time, but now were seeing bylaws requiring businesses to regularly give police information, without request, in a variety of situations (such as information who’s been buying pepper spray, hydroponic supplies or chemicals that could be used to make drugs and who’s been renting mailboxes at commercial mailbox centres).
And governments are now large purchasers of personal information from the private sector. So far this is being seen mostly in the US think of Total Information Awareness, MATRIX, Secure Flight and so on but to think that our own governments will ignore the expanding private sector trove of electronic personal information much longer.
As databases proliferate, become more comprehensive and become lifelong, it’ll be harder and harder to resist those who say that, since the information is out there, the state should be able to use it. Time and time again over the last six years I’ve been told by middle-aged, middle class Caucasian males that they have nothing to hide, so why should anyone else feel differently? Let the government have the information it needs to protect us, they say.
Now, I don’t doubt the good faith of BC’s police agencies not for a minute. But, thinking thirty or fifty years down the road to a time when the lines between national security and law enforcement have blurred to vanishing, will there be any meaningful rules? If not, will our belief in the good faith of state officials, set adrift without guiding rules, be enough to sustain our privacy and other rights?
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