Public Safety committee  It certainly is a challenge. Whether or not there's a middle ground generally is a technical question. Again, my background is in law and human rights. All that I can do is look to what the technical community has said. For years, governments have been saying—and the U.S. government has been prominent in this—that we need to find a way whereby the government can obtain a warrant to access encrypted communication that won't undermine the general security of the information.

Public Safety committee  No, sorry.

Public Safety committee  There are many countries that have laws against promoting terrorism, including Russia and Egypt. They generally come from the areas of the world that I wouldn't want to see Canada trying to emulate. What I can say is that the key in terms of international human rights standards is to find that nexus where you're outlawing speech that has a direct cause-and-effect relationship with the harm, whether it's terrorism, whether it's racial hatred.

Public Safety committee  First, it's worth noting that metadata can be defined in many different ways. Depending on how it's defined or how it's framed in the legislation, there are different levels to which it can be somewhat invasive or highly invasive. If you consider metadata to include, for example, a list of the websites that you visited, then even if you're not getting the content of the communications through a particular website, the fact that you go to a website can reveal a huge amount of deeply personal information.

Public Safety committee  Thanks so much to the committee for the invitation. I'm here as a representative of the Centre for Law and Democracy, which is an NGO based in Halifax that works to promote foundational rights for democracy. Our particular emphasis is on freedom of expression, so I'm planning on providing commentary from that perspective.

Information & Ethics committee  You can create a legal standard that goes beyond the charter protections. The charter is the point at which rights must be respected, and you can take a legal standard that goes beyond that. In terms of the actual formulas for remedy, though, in that kind of case you would complain to the Privacy Commissioner either way, whether you were relying on a constitutional provision—

Information & Ethics committee  This is the problem with global data flows. We're used to traditional ideas of jurisdiction. Even international law is based on this idea of where a country ends. When you have information that's flowing all over the place—when you have the Internet, which doesn't have traditional borders—it's very difficult to apply traditional understandings of jurisdiction and traditional protections of rights.

Information & Ethics committee  I think this strays a little bit outside my expertise, but generally speaking, you would want to see information sharing agreements specify clearly how the information may be used, and that includes further disclosure. This is a major issue both in the public sector and in the private sector.

Information & Ethics committee  I can say as well that these paramountcy clauses tend to be a bit problematic. They are problematic in the Privacy Act, and they're also problematic when we find them in the Access to Information Act. Generally speaking, when we have a piece of legislation that's supposed to set out standards, it creates tension when you say “Here are the standards by which the government is going to operate, except for any other law that contradicts it.”

Information & Ethics committee  There's a reason I started my presentation by talking about privacy as a human right. The fundamental duty of government is to safeguard and protect the human rights of its people, and that includes providing security, of course, and it includes guaranteeing freedom of expression, but it also means respecting their privacy.

Information & Ethics committee  Sure. I think there's a risk that it will bump a little bit into what my colleague mentioned before about having acts written in a technologically neutral fashion. Metadata means one thing today; it could well mean a totally different thing in five or 10 years. I do think that metadata has a very high privacy value.

Information & Ethics committee  I need to defer to my colleague on this aspect because my presentation on Bill C-51 is tomorrow and I haven't prepped that yet.

Information & Ethics committee  We support as necessary first steps the Privacy Commissioner's recommendations that information sharing agreements must be in writing, must be clearly specified, and must be sharing information for specific purposes. We think those agreements should also be public so that there can be a better debate on how information sharing takes place and Canadians can get a better understanding.

Information & Ethics committee  I haven't studied that issue specifically, but I will say that I would be interested to know if there are documented cases of identity theft that has occurred as a result or if it's just a flag that's been raised.

Information & Ethics committee  Yes, absolutely, it is a loophole that can be exploited, and it has been exploited. To give you a parallel example, which I think spells the issue out more clearly, you have the United States signing information surveillance agreements with Denmark. They signed an agreement with the Danish intelligence agency and they said, “You can use our networks to spy on anybody outside of Denmark, but you can't spy on Danish citizens with them.”