Radwanski responds to access proposals as “unjustifiable deterioration” of rights

The Privacy Commissioner of Canada, George Radwanski, sent the following letter to the Honourable Martin Cauchon, Minister of Justice and the Attorney General of Canada, the Honourable Wayne Easter, Solicitor General of Canada, and the Honourable Allan Rock, Minister of Industry, regarding the "Lawful Access" proposals. The following is an edited excerpt. November 25, 2002 I welcome the opportunity to comment on the "Lawful Access" proposals that have been put forward by the Minister of Justice and Attorney General of Canada, the Solicitor General of Canada and the Minister of Industry. The proposals that have been presented in the consultation paper are of fundamental importance to Canadians. Under the so-called "lawful access" proposal that the federal government has put forward, our use of the Internet and our electronic communications would be subject to unprecedented scrutinyThe interception and monitoring of private communications is a highly intrusive activity that strikes at the heart of the right to privacy. If Canadians can no longer feel secure that their web surfing and their electronic communications are in fact private, this will mark a grave, needless and unjustifiable deterioration of privacy rights in our country. I do not suggest that privacy is an absolute right. I recognize that there may sometimes be a need for some new privacy-invasive measures to enhance security and allow law enforcement agencies to investigate crimes and threats to public safety. But proposals for any such measures must be evaluated calmly, carefully and on a case by case basis. The burden of proof must always be on those who claim that some new intrusion or limitation on privacy is necessary. I have suggested that any such proposed measure must meet a four-part test: it must be demonstrably necessary in order to meet some specific need; it must be demonstrably likely to be effective in achieving its intended purpose. In other words, it must be likely to actually make us significantly safer, not just make us feel safer; the intrusion on privacy must be proportional to the security benefit to be derived; and it must be demonstrable that no other, less privacy-intrusive, measure would suffice to achieve the same purpose. The consultation paper cites two main reasons for the measures it proposes: a need on the part of law enforcement and national security agencies to "maintain lawful access capabilities" in the face of technological developments; and a need to enable Canada to honour its international commitments, particularly the Council of Europe Convention on Cyber-Crime. It is apparent to me, however, that what is being requested here are significantly new and enhanced powers of access to the private communications of Canadians that go far beyond maintaining the capabilities and authorities that law enforcement and national security agencies may have had in the past. What’s missing is evidence demonstrating that there is, in fact, a serious problem that needs to be addressed. Lacking any evidence of serious problems requiring correction by invading the privacy of Canadians, it is not possible to be persuaded that the proposals address these problems effectively, proportionally, and in the least privacy-invasive manner possible. As a first step, I would strongly encourage the three departments involved in this proposal to present a clear statement of the problems faced, along with empirical evidence supporting the need for enhanced interception and surveillance powers as proposed in the consultation paper. The arguments advanced in the consultation paper are completely insufficient. I am equally unconvinced by the argument that international commitments require Canadians to submit to an enhanced domestic surveillance regime. This is especially the case because one of the main purposes of the Council of Europe Convention on Cyber-Crime is to facilitate information-sharing among law enforcement agencies in the signatory countries. This raises the spectre of intrusive surveillance activities carried out upon Canadians by Canadian law enforcement and security agencies, yet initiated by foreign agencies, for foreign crimes or with regard to other activities that may be perfectly legal in Canada. Furthermore, it is my understanding that the Council of Europe Convention has not yet been ratified by Canada. Therefore, it would seem that whatever legal obligation is being asserted to implement its provisions is in fact non-existent. Very frankly, if the Council of Europe Convention on Cyber-Crime requires intruding on the privacy rights of Canadians to an extent that cannot be justified on its own merits and that is inconsistent with our Canadian values and Canadian rights, then this Convention should not be ratified by the Government of Canada.

Radwanski responds to access proposals as “unjustifiable deterioration” of rights

Broadcast | November 28, 2002

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