I'd like to start by saying that CSIS and CSE are very different agencies, operating under different mandates, and the context in which the definition of “publicly available” is applied in the CSE portion of Bill C-59 is different from the context in which it's applied in the CSIS Act. Bill C-59 establishes proposed sections 11.01 to 11.25 of the CSIS Act, which is a robust framework for the service's collection, retention, and use of datasets in support of our investigations. Essentially Bill C-59 creates three types of datasets: publicly available datasets, predominantly foreign datasets, and predominantly Canadian datasets. It establishes a system of safeguards that govern their use. The safeguards are, in general, applied in consideration of the reasonable expectation of privacy of the different types of datasets. The lowest reasonable expectation of privacy is associated with publicly available datasets, so the safeguards are the lightest but they exist.
The intention of Bill C-59 within the dataset framework is to create three mutually exclusive categories of datasets. A dataset is either publicly available or it's Canadian or it's foreign. If we took the proposed definition of “publicly available dataset”, it would take out any dataset that has a reasonable expectation of privacy. We are told by our legal experts that when you assess reasonable expectation of privacy, you have to take context into consideration, so for a dataset collected by the service, the reasonable expectation of privacy might be different if it were used by someone else.
By adopting this definition, it is possible that we could eliminate the category of “publicly available”, but there is no dataset that can be collected by the service for which there is absolutely no reasonable expectation of privacy. There are a lot for which it is very low, but reaching the standard of zero expectation of privacy would mean not having the category of publicly available datasets. In the extreme, you would create a situation in which if the service wanted to collect the Saskatoon phone book, it would have to apply to get the Federal Court's authorization to do so. From a service perspective, that is simply administratively impossible given the burden it would create for us.