Everyone in Canada enjoys the right to be free from unreasonable search and seizure. This ensures that the government cannot obtain your information without lawful access if you have a reasonable expectation of privacy over that information. This right is enshrined in our Charter, and it is fundamental to a free and democratic society.
Americans enjoy a similar right, and it, too, is enshrined in their Constitution: the Bill of Rights, to be exact, which has been around a lot longer than our Charter. Many years before we passed our Charter, the Supreme Court in the United States had several occasions to elaborate on its interpretation of the right, and it came up with a curious theory known as the Third-Party Doctrine. In a nutshell, it said that if you allowed your information to be in the hands of a third party, i.e., your phone company, then you couldn’t claim that you had a reasonable expectation of privacy over that information.
Fast-forward a few decades and I think we all agree that this reasoning by American jurists wouldn’t stand today. In today’s world, if you want to meaningfully participate in the world around you, you have to let third parties collect, use and—sometimes—disclose your information. It’s simply a given. And, to suggest that by allowing third parties access to your information you are giving up your expectation of privacy is borderline ludicrous.
That’s why it’s so important for third parties, like banks, telcos, book stores, etc., to only pass along our information to the government when the government is clearly justified in collecting it. How often does the government do this? What type of information do they get? Is my telco simply feeding the government my information all the time just in case I might do something wrong someday?
I’d say this is an important topic, and it’s why I call your attention to the fact that Canada took a significant leadership role internationally this past week when they convinced data protection authorities (DPAs) from around the world to pass a resolution calling on greater transparency by governments when obtaining our information from third parties. Made me proud to be Canadian. I now just hope the resolution becomes something more than just a bunch of DPAs chatting about the importance of something around a table in Amsterdam. Next step is for governments to listen to these smart people.
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