The Parliament of Canada has passed Bill C-13, which expands surveillance powers for authorities and provides protection for telecommunications firms that volunteer information about their customers to support criminal investigations. The bill frames cyber-bullying as a public good that justifies a reduction in the standard of suspicion required by authorities to legally collect telecommunication data. The bill also makes a distinction between the collection of message content and the collection of data about messages, commonly referred to as ‘meta data’. This updating of Canadian law comes at a time of heightened concerns about privacy invasion, as expressed in reports released by the United Nations on personal privacy in the digital age. The UN has called for increased accountability and transparency of surveillance activity conducted by government agencies, citing concern for the erosion of democratic rights and freedoms.
Although the bill lists three focal points, it largely deals with two issues: crimes committed using telecommunication and the legality of surveillance practices associated with investigating those crimes. Cyber-bullying and the distribution of intimate images are presented as crimes that can be more effectively investigated by lowering the standard of suspicion that is required for justifying data collection. Obviously the expanded surveillance power afforded by the new legislation is not limited to investigating these particular crimes. The bill makes it clear that there are applications for all forms of cybercrime and the ongoing fight against terrorism. Moreover, the bill notes that all crime can be committed using telecommunication suggesting a potentially limitless number of ways to justify legal access to personal information.
The second focus of the bill addresses lawful access to telecommunication data directly. Barriers to surveillance activity are significantly reduced through the creation of two new and specific cases of data collection known as ‘transmission data’ and ‘tracking data’. Tracking data refers to the collection of information about the location of an object or an individual. Transmission data refers to information about communications, which can include records about the sender, receiver, duration and frequency. While this kind of data may appear less invasive because it does not include the content of messages, the contextual details can reveal a great deal about an individual’s religious beliefs, political leanings and intimate relationships. The appearance of being less invasive has provided justification for lowering the standard of suspicion required to legally collect these forms of data. Rather than believing a crime has been committed, investigators now only need to suspect that a crime is likely to be committed. The result is lower requirements for investigators to legally access information and an expansion of the amount of data that can be collected.
This legislation develops a legal framework that facilitates access to digital communication, which could certainly aid criminal investigations. However, privacy concerns have led to calls for this increased transparency of citizens to be matched by increased transparency of surveillance activity conducted by government agencies. Several reports produced by the UN underscore the potential for mass surveillance to create a chilling effect on democratic features of civil society. A recent report by the UN on ‘the right to privacy in the digital age’ calls for greater transparency and accountability of State surveillance activity as well as improved mechanisms for citizens to seek remedy. The UN also calls upon corporate actors to preserve the privacy of citizens, which speaks directly to the reduced legal exposure afforded to private corporations who voluntarily share data with investigators under the new bill.
Bill C-13 reflects the rise of security culture and the blurring of sectors in the Canadian surveillance landscape. While the bill is presented as a tool for combatting cyber-bullying, it is clearly applicable to anti-terror investigations placing it within discussions that center around national security concerns. Moreover, the rise of government access to data collected by private corporations blurs the boundaries between public and private sectors. Not only does this intensify surveillance of citizens, it also makes it less clear where responsibility and accountability for privacy invasions is located. While the bill makes it clear under what conditions citizens may have their personal data collected by investigators, it offers little in the way of assuring Canadians they are protected from unwanted and unnecessary violations of their personal privacy in the digital age. This seemingly leaves the call for improved transparency and accountability of State surveillance in Canada unanswered.