In appointing Daniel Therrien as Canada’s new Privacy Commissioner, the government could not have shown more contempt for the issue of privacy had Stephen Harper walked into a press scrum and proceeded to read aloud pages from his daughter’s diary.
Which is not to criticize Therrien the man. For all anybody knows, he may turn out to be an exemplary commissioner, willing to step up to the properly adversarial role one would expect of any watchdog. The selection of a candidate unknown to privacy experts amidst growing unease over government surveillance, however, suggests that the Harper government lacks the stomach for criticism, and is unwilling to address privacy concerns.
Therrien’s appointment came as a surprise when he was selected over other candidates with more relevant experience. The Harper government ignored the advice of its own selection committee and opted for an attorney with a background in advising law enforcement and intelligence agencies whose practices can be at odds with the Office of the Privacy Commissioner. Therrien helped define privacy guidelines for sharing sensitive information with US intelligence, law enforcement, and border security, a practice that has invoked the ire other Privacy Commissioners.
Privacy Commissioners are responsible for overseeing the government and the private sector and ensuring that they comply with privacy laws. Though the office has no enforcement powers, it can research and report privacy violations, and commissioners have played a strong advocacy role at both the federal and provincial levels.
That advocacy role is badly needed given the sorry state of oversight in Canada, particularly when it comes to the matter of government surveillance.
CSEC, Canada’s signals intelligence agency and close partner of the NSA, is overseen by a commissioner whose reports to Parliament only contain the information that CSEC’s boss, the Minister of National Defence, allows to be conveyed. Yet even this fiercely codependent office has been unable to assure us that the spy agency isn’t monitoring the communications of Canadians. The Security Intelligence Review Committee, which oversees CSIS, is a scandal–plagued shambles whose membership is stacked with Harper appointees closely tied to the oil industry. Meanwhile, CSIS has reportedly been sharing intelligence on anti-pipeline activists with oil companies. While both intelligence agencies frequently work together, their respective watchdogs are not allowed to do the same.
Despite all this, despite growing anxiety over government surveillance techniques as revealed by Edward Snowden, and despite alarming disclosures that Canadian law enforcement agencies made 1.2 million requests for subscriber information from telecom companies in one year alone, privacy safeguards only stand to be weakened. Like the man standing at the urinal beside you complimenting your watch, the Harper government has continuously displayed a belligerent disregard for personal boundaries.
Emblematic of this disregard are two pieces of legislation working their way through Parliament. Bill C-13, the controversial cyberbullying bill, would encourage internet and telephone companies to share subscriber data with law enforcement, without having to wait for a warrant, by granting them immunity from litigation should they happen to violate the rights of their customers. Bill S-4, the cynically named Digital Privacy Act, would provide similar immunity to companies sharing subscriber data with one another. The convenient timing of Therrien’s appointment coincided with committee hearings over C-13. Therrien offered his input on June 10, right after he found his parking spot.
Of course, even the most outspoken candidate for the job could not halt misguided legislation or correct the inadequacies of our intelligence agency watchdogs. Yet as a bully pulpit, the Office of the Privacy Commissioner could counter bad policy with informed criticism.
Stephen Harper has discovered repeatedly that Officers of Parliament could be a real drag when he’s trying to ram ill-advised bills through. Kevin Page, the first Parliamentary Budget Officer made frequent headlines with his clashes over government spending with the administration that created his office. Chief Electoral Officer Marc Mayrand weathered attacks on his character earlier this year when he spoke out against the Fair Elections Act, and though the government continued to insist that the bill was perfect in its original form, it still amended its most egregious provisions.
Both Page and Mayrand were appointed by Harper, and we can be sure that he lived to regret those choices. Not being federally employed scientists though, he has yet to find a way to muzzle them before their terms expire.
Therrien may turn out to be one of those regrets himself, and early comments may serve as fodder for the optimistic. Among other concerns, Therrien indicated that he believed bill C-13 should be split into two bills to deal with its cyberbullying and lawful access provisions separately. Here he seems to be siding with pretty much anyone who isn’t a Conservative or employed by law enforcement.
Therrien also eased some anxieties over his appointment by testifying to the Senate that the controversial practice of sharing personal information with US law enforcement predated his own work, and he himself found it disconcerting, thus defusing any worries over a possible conflict of interest.
Such early signals of an adversarial stance to the government line are promising, and his years of experience with the other side of the privacy vs. security debate could bring added weight to his criticisms of government practices, should he choose to level them. Everything suggests that is not the Privacy Commissioner Harper is looking for.
Therrien is stepping into a job he has no experience in, surrounded by skeptical colleagues and suspicious critics. His appointment was so hurried and murky, that Liberal MP Irwin Cotler abstained from voting to confirm Therrien; not because he didn’t support him, he had worked with him before as Justice Minister, but only because he could not countenance the process. NDP MP Irene Mathyssen argued that Therrien’s 45 minutes before the House of Commons committee hardly amounted to the full parliamentary review of government appointees once advocated by a younger Stephen Harper.
So I don’t envy Daniel Therrien for his first days on the job. Those are awkward circumstances to start with, almost as awkward as meeting the CSEC agent who has studied your porn habits. I would wish him luck, but it’s difficult to do so without knowing the man or his intentions. The intentions of the man who hired him, on the other hand, remain suspect.