Canadian data, U.S. laws, and privacy rights

The above tweet references in interesting article by Lisa Austin – a U. of T. law professor.

It includes:


A great deal of Canadian communications data is subject to U.S. domestic law. This is because a lot of our Internet traffic is routed through the United States, and also because many Canadians embrace U.S.-based cloud computing and so have their data stored on U.S. servers. American domestic laws – like the controversial FISA 702 authority that allows for warrantless access to the data of non-U.S. persons – do not protect Canadians to the same extent as Canadian law.

It gets worse.

This past fall, Justice Mosley at the Federal Court of Canada released a partially redacted decision regarding the Canadian Security Intelligence Service, Canada’s spy agency, getting assistance from Communications Security Establishment Canada, Canada’s electronic-intelligence agency, for its surveillance. It is clear from this decision that both CSIS and CSEC were operating with legal advice from the Department of Justice that suggested that, for example, CSEC “could request that a foreign agency do within its jurisdiction that which CSIS and CSEC could not do in Canada without a warrant.”

What does this mean? It means that Canadian authorities apparently think they can ask U.S. authorities to spy on Canadians so long as this happens within U.S. jurisdiction according to U.S. domestic law, even when this law is less protective than our own domestic standards. This seems to be the position of the very Department of Justice where Mr. Therrien has served his entire career, the last nine years of which he has been Assistant Deputy Attorney General, Public Safety, Defence and Immigration Portfolio.

It looks like the privacy principles that Mr. Therrien helped to negotiate ensure that Canadian legal standards do not follow Canadian data when it crosses the border. This is not privacy-protective but rather privacy-destructive. And if his involvement in the Beyond the Border Accord is the main evidence of a commitment to privacy that Prime Minister Harper can offer then he is indeed signaling quite unequivocally that the Government of Canada does not care about privacy.




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