My Neighbour's Kid Just Bought a Drone . . . New Paradigms for Privacy Law in Canada

Abstract

Governments undermine important privacy rights when they enlist Internet Service Providers (ISPs) and Online Service Providers (OSPs) to provide personal information about their subscribers. Using the Protecting Canadians from Online Crime Act, and Bill C-30, the Protecting Children from Internet Predators Act, as examples, I explain how legislation can undermine privacy protected under s. 8 of the Canadian Charter of Rights and Freedoms by creating incentives for private corporations to divulge their subscribers’ private personal information to government agents. To limit the state’s ability to undermine privacy in this way, I suggest that a new paradigm of privacy is needed — one that recognizes that the appropriate scope of privacy is highly contextual and emerges from new forms of social interaction, many of which are mediated through new technologies or new uses of old technologies.

This new paradigm must be translated into concrete changes to the protection of privacy afforded by s. 8 of the Charter: the scope of protected privacy should be defined broadly with all limitations being submitted to strict scrutiny under s. 1 and the Oakes test. Recent Supreme Court of Canada decisions such as R. v. Vu, R. v. Fearon and R. v. Spencer may signal some openness to new approaches, but they do not go far enough to protect emergent dimensions of privacy.

The new paradigm also requires greater oversight of both state and private actors. I provide examples of oversight mechanisms that could replace the old, creaky system of warrants and common law search powers that do not provide the transparency and accountability we require for state invasions of privacy.

Keywords: privacy, theories of privacy, big data, personal information, Canadian Constitutional Law, s 8 of the Canadian Charter of Rights and Freedoms