Defining Privacy
A critical investigation of Canadian political discourse

Critical-Discourse-Analysis

4.2 Text and Interpretation

The analysis in this section will both describe and carry out the method of CDA using a transcript from the Hansard corpus. The method of CDA comes directly from Fairclough’s Language and Power, 3rd ed., which outlines his theory and process. While Fairclough’s method is not the only approach to CDA, it will form the basis of the analysis that follows here.

Introduction

Fairclough’s method is based on a three part analysis of text, interpretation, and context. The first stage involves the investigation of a text in terms of the formal properties of language: the actual words, phrases, and sentences, in terms of vocabulary, grammar, and overall structure (Language and Power 129). The second stage is an interpretation of the social content of the discourse, which includes interpreting the interactions between the discourse participants and each other and within the situational context where the discourse occurs, as well the interactional nature of the discourse itself (Fairclough, Language and Power 154). The third stage is an explanation of the relationship between the discourse and the social structures it represents in an attempt to contextualize the discourse as a social practice that sustains or changes relations of power in society (Fairclough, Language and Power 172).

The goal of this entire work has been to investigate the discourse of privacy in the House of Commons in an attempt to determine the meaning of the word as it is used in practice. An analysis of this nature does not lend itself to linearity, in fact it has been continuously undertaken throughout every chapter so far. Chapter 1, the Introduction, described the basic structure of the Canadian federal system of government. This description fits into stage two of CDA, as it provided information about the situational context of the House of Commons, where the discourse occurred.

Chapter 2 was an investigation of federal privacy legislation and the ways that the legislation has been interpreted by the Supreme Court. It also included an examination of documents and philosophy that influenced the both the creation of the privacy legislation and the rulings of individual court cases on privacy issues. This provided further information for stages one, two, and three. The description of the content of the actual legislation and the court rulings fits into stage one. The legislation itself is created in part through the discursive practice of debate. While the House of Commons is responsible for the production of the legislation, it is interpreted by the courts, with the Supreme Court acting as the final and ultimate arbitrator. The resulting court judgments and the legislation itself is further interpreted through debate in the House. This examination of the relationship between the legislation and the Supreme Court rulings, as well as the context under which both were created fits into stage two. The power in the House of Commons is expressed and sustained through the enactment of legislation, which in most cases is based on the ideology of the majority government. This legislative power can either be maintained or challenged by the courts. Both of these factors provides the context for stage three.

Chapter 3 involved a text analysis of the Hansard corpus spanning the whole of the 39th to 41st Parliaments. This time frame represents the entire period of minority and majority governance by the Conservative Party of Canada under the Right Honourable Stephen Harper. The text analysis investigated the formal language use during this period by determining the frequency of the word ‘privacy,’ as well as the frequency of phrases related to privacy, those being ‘privacy rights’, ‘right to privacy’, and ‘reasonable expectation of privacy’. Concordance and collocational analyses were also conducted, which uncovered trends related to the ‘meaning systems’ that encompass the word privacy. These trends include a verification through collocational statistics that the word ‘right’ is strongly associated with ‘privacy in a non-random way. The concordances revealed trends regarding the use of ‘privacy’ at the level of the sentence, which identified a clear relationship between ‘privacy’ and social groups, the most interesting of these was a group repeatedly identified as ‘law-abiding’ Canadians. Chapter 3 clearly fits into stage one of the CDA method. Furthermore, while this section is focused on the formal analysis of one specific instance of discourse, the results of the text analysis in Chapter 3 help to situate the discourse within the broader context of social interactions and structure in the House as a whole, which helps to validate the interpretation and explanation required for stages two and three

Finally, this chapter provided further insight into the specific discursive practice of debate and the ways in which it contributes to the structure of the House of Commons. The previous section in this chapter described the relationships between the Members of the House and each other, as well as their relationship to the House itself, which fits into stage two. The struggle for power enacted through these interactions and the situation context as a whole were described in terms of the constraints that mediate the social and structural relationships, which fits into stage three of the analysis.

The specific transcript for the CDA was selected based on the results of the text analysis in the Chapter 3, which showed trends related to an increase in the relative frequency of the word privacy in 2014, as well as increase related to the phrase ‘privacy rights’. Out of a total raw frequency of 1567 occurrences of ‘privacy’ in 2014, the transcript for May 5, 2014 contained the highest raw and relative frequencies of any of the transcripts that year, totaling 243 instances of the word, for a relative frequency of 0.43% compared to the total words in the transcript. The phrase ‘privacy rights’ occurred 101 times in 2014, and 16 of those times occurred on May 5, 2014, which was again the highest raw frequency for that phrase in 2014. The relative frequency of the phrase compared to the total number of words was 0.028%. This data is articulated in Table 4-6.

Table 4.6: Comparison of raw and relative frequencies of ‘privacy and ‘privacy rights’
    privacy   privacy rights
Period 2014 May 5 2014 May 5
Raw Frequency 1567 243 101 16
Ratio % 0.022 0.43 0.0014 0.028

As it was just mentioned, CDA is not a linear process. To serve the purpose in this chapter of describing method and analysis concurrently, Fairclough’s three stages of CDA will be presented as separate parts. Though in order to understand the content of the formal analysis of the text itself, the context of the interaction must first be described as a means of ‘setting the stage’ for the entire analysis. Though much of this work has already been done, the analysis will begin with stage two, the interpretation of the discourse interaction, and then move back to stage one, the textual properties of the discourse itself. Stage three, the explanation stage will be presented in the next section, as a means of concluding the chapter.

Stage Two: Interpretation

The purpose of the interpretation stage is to determine the ways in which the relations between the discourse participants and the situational context of the discourse play a role in the production and interpretation of the discourse itself. Fairclough has structured the interpretation stage with a number of guiding questions that have the purpose of determining the content, relations, and context of the discourse beyond the level of individual words and sentences (Language and Power 159). While the discourse type and situational context have already been described, the following text will provide further details about the content of the discourse itself and the social roles and relations of the discourse participants.

What’s Going On?

As a way of balancing the competing interests of the opposition parties in the House, there are 22 ‘alloted days’ in a calendar year specified for the business of supply (Parliament of Canada, “Business of Supply”). On supply days, as they are commonly called, opposition motions take precedence over all government business (Parliament of Canada, “Business of Supply”). Opposition motions can be proposed by any of the opposition parties, and not just the Official Opposition, though the opposition parties must decide amongst themselves who will sponsor the motion (“Opposition Motions”). The transcript selected for this analysis occurred on one such supply day.

The text concerns a motion proposed by the Official Opposition. The motion led to a debate which lasted several hours and included a number of participants from four different political parties.

The motion was proposed by Charmaine Borg, an NDP MP representing the Quebec riding of Terrebonne—Blainville. At the time, Borg was the Digital Issues Critic and a member of the Standing Committee on Ethics, Privacy and Access to Information. The motion is as follows:

That, in the opinion of the House, the government should follow the advice of the Privacy Commissioner and make public the number of warrantless disclosures made by telecommunications companies at the request of federal departments and agencies; and immediately close the loophole that has allowed the indiscriminate disclosure of the personal information of law-abiding Canadians without a warrant (Hansard Vol. 147 No. 80, 4899).

In this motion, Borg is advancing two proposals. The first proposal is that the government should follow the advice of the Privacy Commissioner by publicly disclosing the number of times that personal information about Canadians was provided to federal departments and agencies without a warrant.

The second proposal suggests that the government “close the loophole” that allows federal departments and agencies to obtain access to personal information about “law-abiding Canadians” without first applying for a warrant.

In the speech accompanying the motion, Borg explains that she has proposed the motion in response to a recent revelation from the Privacy Commissioner Chantal Bernier. Bernier announced that during 2011 federal agencies made 1.2 million requests to telecommunications companies for the personal information of subscribers without first obtaining a warrant (Hennessey). This information is contained in a letter dated December 14, 2011, addressed to former Privacy Commissioner Jennifer Stoddart from Karen E. Hennessey of the law firm Gowling LaFleur Henderson. The letter is a response to a request from Stoddart for information regarding the number and nature of requests for personal information made to telecommunications companies by federal and law enforcement agencies. This letter can be found in Appendix 1.

Stoddart’s letter also requested information about whether the telecom companies publicly disclosed the number of requests, if they notified customers to give them an opportunity to appeal the disclosure, whether fees are requested, and if deep-packet inspection is used (Hennessey). Interestingly, the request was mediated through a law firm to provide for the anonymity of the nine agencies that responded. This is despite the fact that none of the companies notified the subscribers about the disclosure of their personal information.

This debate occurred before Bill C-13, otherwise known as the Protecting Canadians from Online Crime Act, came into force. As it was discussed in Chapter 2, Bill C-13 contains an addition that allows peace or public officers to request the voluntary disclosure of data if there is no legal reason why it cannot be disclosed. Though the bill had not yet come into force, the Members of the House were aware of it, and based on the content of many of the speeches in this debate, the bill was seen by the opposition parties as further eroding the privacy protections afforded to Canadians under the legislation at the time. So although the motion was technically about the state of the legislation on May 5, 2014, it became a way for the Official Opposition to raise their objections in anticipation of Bill C-13.

For the government, the debate on the motion was a way for them to further justify their reasons for supporting Bill C-13, as well as to voice their support for Bill S-4, The Digital Privacy Act, which as discussed in Chapter 2, contained amendments to PIPEDA. These amendments had also yet to come into force.

Who’s Involved?

Appendix 2 contains a complete breakdown of the individual speakers by party, including the number of times they spoke, as well as the ratio of their contribution to the total number of speeches in the debate. The way in which Hansard is formatted in print makes it easy to determine who has spoken, what they have said, and when they have said it within five minute intervals. The number of instances of individual speech was determined by extracting all of the names from the text of the debate itself and counting them, regardless of repetition. The number of speakers was determined by counting the total number of unique names in the list. While other business was discussed in the House that day, the analysis here is focused only on the text directly involved in the debate, meaning the count of speakers and speeches in the transcript as a whole is different than the count of speakers and speeches within the context of the debate itself.

What are the Relations?

The House of Commons is based on the idea of representation. MPs are elected to represent the people in their electoral district, which consist of specific areas demarcated by geography. The number of seats in the House is decided on the basis of population figures, which divide the country into a total of 308 electoral districts based on province or territory (O’Brian and Bosc). In theory, when MPs speak in the House, they are speaking on behalf of all of those who reside in a particular area of geography.

Another aspect of representation has to do with political party membership. While MPs are representative of their electoral district, they also represent the ideology of the political party they belong to. At the time of the selected transcript there were five different political parties represented by MPs in the House of Commons. While this analysis is a non-partisan investigation of the discourse of privacy as it is represented by the House of Commons as a whole, it has to be recognized that there are competing orders of discourse within the House itself, based on differences in party ideology.

The nature of party discipline requires MPs to effectively balance these two distinct relationships (Library of Parliament, “Party Discipline” 2). While MPs are responsible for voicing the concerns and wishes of their constituency, they must also consistently maintain a viewpoint that aligns with their chosen party’s ideology (Library of Parliament, “Party Discipline” 2).

Table 4-7 shows the breakdown of speakers and speeches by party, as well as the total distribution of seats by party in the house (Library of Parliament, “Parliaments”). The Official Opposition, the New Democratic Party (NDP), had the highest number of speakers and speeches, at 48% and 46% respectively. The government, the Conservative Party (CPC), came in at second place with a 36% of the total speakers and 36% of the speeches. The other opposition parties, the Liberal Party and the Green Party, occupied the third and fourth place in this regard. During a debate, the Speaker of the House chooses who will speak based on a number of criteria (O’Brian and Bosc). On supply days, Members from the party sponsoring the motion may be recognized more frequently, which appears to be what happened in this debate (O’Brian and Bosc). Another reason for the reduced participation by the Members from the CPC may be their attitudes regarding the importance of supply days. This is illustrated by an excerpt from a CPC MP in the next section, where the MP explains that supply days are usually a waste of his time.

What is the Role of Language in What’s Going On?

While a comprehensive text analysis was conducted in Chapter 3, the purpose of this further analysis is to investigate the actual instances of text in the context of the discourse to develop a deeper understanding of the language in use.

While it must be acknowledged that a single text can only represent a distinct moment in time, this text is the most substantive debate on privacy in all of 2014, which was a year where privacy was discussed with a greater relative frequency than the other years in the corpus. According to Sullivan, “when the purpose of a provision is discussed or its meaning explained during the enactment process, and the legislation is then passed on that understanding, the explanation or discussion offers persuasive (if not conclusive) evidence of the legislature’s intent” (659). Therefore, this text can be seen to be representative of the cognition and ideology of the discourse participants, which provides evidence for their deeper understanding of the issue of privacy as a whole, and their motivations for supporting or opposing the legislation they are discussing. The debate selected for this analysis was, for all intents and purposes, a debate on Bill C-13, which made critical amendments to the Criminal Code in terms of an individual’s reasonable expectation of privacy, which has a direct effect on individuals rights under s. 8 of the Charter to be free from unreasonable search and seizure.

Thus, the systems of meaning identified through the language used in this debate are representative of the orders of discourse that inform the true intent of the ideological understanding of privacy in the House of Commons.

Stage One: Text

Text analysis in CDA involves analyzing a text in terms of its vocabulary, grammar, and structure. The purpose of this level of analysis is to evaluate the text as a means of determining the systems of meaning and discourse type that the text draws upon, which can then reveal the ideological character of the language (Fairclough, Language and Power 128). The intent of this stage is not to examine all of the textual elements of the debate in its entirety, but to focus in on the specific elements that support the work that has already occurred.

Since a comprehensive text analysis has already been conducted on the corpus as a whole, this analysis will focus on three themes that have arisen as a result of that analysis, as well as from the privacy review in Chapter 2. These themes are: the right to privacy, the definition of personal information, and law-abiding Canadians.

The Right to Privacy

The text analysis in Chapter 3 uncovered a strong collocational relationship between the words ‘privacy’ and ‘right’. This particular debate also had the highest frequency of the phrase ‘privacy rights’ compared to any of the transcripts in 2014. This phrase occurred most often in sentences that also included a reference to ‘Canadians’ or ‘law-abiding Canadians’. The concept of ‘law-abiding Canadians’ will be investigated at the end of this section, but the concept of privacy as a right merits further discussion here.

The investigation in Chapter 2 concluded that Canadians do not have an explicit ‘right to privacy’, but rather, a quasi-constitutional right to the protection of their personal information held by government or business where a reasonable expectation of privacy exists. R. v. Spencer used s. 8 of the Charter as a privacy defence, specifically against warrantless search and seizure involving the disclosure of personal information, but when this debate occurred the judgment had yet to be published. The uncertainty surrounding the interpretation of the legislation responsible for protecting personal information, especially regarding the need to obtain a warrant, is evident in this debate.

During the course of the debate, four different CPC MPs conflate the rights afforded by the Charter and the legislation responsible for the protection of personal information as being one and the same, in a sense, referring to a Charter right to privacy. They all spoke with certainty that the Charter was directly responsible for the protection of personal information.

Dave Van Kesteren of the CPC made the most explicit statement, going so far as to say that privacy is guaranteed by the Charter:

At all times an individual’s right to privacy, as guaranteed by the Canadian Charter of Rights and Freedoms, must be respected. Despite any exception provided for in PIPEDA, law enforcement agencies must respect the charter and have a warrant or other justification to obtain private information (Hansard Vol. 147 No. 80, 4906).

Later, Paul Calandra of the CPC said that “(p)ersonal information that is protected by the charter requires a warrant” (Hansard Vol. 147 No. 80, 4922).

David Wilks of the CPC said:

To be quite clear on this, an individual’s private information that is protected under the charter cannot be released without a warrant. Police officers and other enforcement agencies in Canada are well aware of that fact (Hansard Vol. 147 No. 80, 4943)

In the next excerpt, Don Davies of the NDP was expanding on a comment made by his NDP colleague, Linda Duncan. Duncan and Davies, both former lawyers, were questioning Wilks, a former policeman, about an assertion he made that there is “no such thing as a warrantless search” (Hansard Vol. 147 No. 80, 4945). The exchange was antagonistic. Wilks asked Davies to provide a definition of warrantless search, and Davies’ responded by saying that “it is fortunate to have a police officer asking a lawyer about the law” (Hansard Vol. 147 No. 80, 4945), leading Wilks to give the response, “I never listen to lawyers” (Hansard Vol. 147 No. 80, 4945). Duncan followed up with a comment implying that seeing evidence in “plain view” could be considered “reasonable cause” for a warrantless search (Hansard Vol. 147 No. 80, 4945). The exchange ended with Davies saying that “it would seem that nobody on that side of the House is aware of the Charter of Rights and Freedoms or how the Constitution works in this country” (Hansard Vol. 147 No. 80, 4946).

By ‘that side of the house’, Davies is referring to the seats occupied by the government, as the House is arranged in such a way that government MPs sit on one side, and opposition MPs on the other. Davies’ statement had the likely intent of further antagonizing Wilks and the government as a whole, rather than pointing out that the Charter is not responsible for the protection of personal information, but this is as close as any of the MPs come to refuting the claims of the CPC.

Finally, Colin Carrie of the CPC said: “Let me be clear. An individual’s private information is protected under the charter and cannot be released without a warrant” (Hansard Vol. 147 No. 80, 4949).

What’s interesting about these statements is their similarity. With the exception of the first comment made by Van Kesteren and the rebuttal by Davies, each person says something to the effect of ‘personal information that is protected by the Charter cannot be released without a warrant’. Two of the four MPs prefaced the remark with a statement about ‘being ‘clear’, which is a phrase that suggests transparency, but is also authoritative. The phrase is meaningless in these two contexts because what it is supporting has no basis in truth. The Charter, specifically s. 8, only affords individuals the freedom from unreasonable search and seizure. It does not purport to protect anything, certainly not personal information.

Considering the purpose of the motion, which was to discuss the 1.2 million warrantless requests by federal agencies for personal information, the identical statements by the CPC MPs have the appearance of being highly scripted, which is a clear indication of the far-reaching influence of party discipline. What kind of personal information are the CPC MPs referring to when they speak of the protection afforded by the Charter?

Basic Subscriber Information

The definition of personal information was discussed at length in this debate, though it was referred to primarily as ‘basic subscriber information’. In all, this term appeared 41 times.

Basic subscriber information, according to Members of the CPC, consists of a individual’s name, phone number, address, email, and IP address (Hansard Vol. 147 No. 80, 4908, 4915, 4940, 4950). Part of this definition appears to come from Bell Canada, as a statement from a Bell spokesperson is quoted or referenced by CPC Members five times during the debate (Hansard Vol. 147 No. 80, 4905, 4932, 4941, 4949). The statement was first shared in full by Roxanne James, and then by Blake Richards. It says:

Bell will only provide law enforcement and other authorized agencies with basic 411-style customer information such as name and address, which is defined as non-confidential and regulated by the CRTC […] Any further information, or anything related to an unlisted number, requires a court order. (Hansard Vol. 147 No. 80, 4932, 4941)

This statement does not include a reference to an email address or IP address, so it is unclear what the basis for the CPC definition truly is. Neither the Privacy Act, nor PIPEDA provide a specific definition of personal information. PIPEDA describes personal information as “information about an identifiable individual”, and the definition in the Privacy Act is identical to PIPEDA, except that it includes “that is recorded in any form” at the end.

This phone book or ‘411’ analogy was used repeatedly by CPC MPs, seemingly as a way to normalize the disclosure of basic subscriber information as a routine practice of law enforcement required to prevent serious crimes (Hansard Vol. 147 No. 80, 4904, 4907, 4932, 4933, 4940, 4941, 4943, 4945, 4950, 4951). CPC MPs also repeatedly pointed out that the information was provided on a voluntary basis by telecommunications companies (Hansard Vol. 147 No. 80, 4904, 4907, 4933, 4934, 4935). What’s interesting about this analogy is that if the information was as readily available as information in phone book, the police wouldn’t need to make a request for it, because they could just look it up themselves, as could anyone.

Adding the statement about voluntary disclosure shifts the responsibility away from the police and on to the telecommunications companies who provide the information. Roxanne James of the CPC, wants to be “perfectly clear” in saying:

We expect that telecommunication service providers abide both by the law and their agreements with their customers in terms of what they release to law enforcement and when they do so. (…) We expect that telecommunication service providers only release basic subscriber information when it is for reasons of public good, such as to help police investigating a crime or, for example, identifying the next of kin (Hansard Vol. 147 No. 80, 4932).

Carrie, in a continuation of his earlier “let me be clear” statement about the protection of personal information by the Charter says:

The telecommunications companies have already said that they only release 411 style information. In other words, like in the old days when we were younger, there was a reverse lookup for a telephone number. This is the type of information that is being disclosed, and we fully expect these companies to comply with the law and play by the rules when handling the private information of Canadians. (Hansard Vol. 147 No. 80, 4949)

Comparing the disclosure of basic subscriber information to what is available through 411, and referencing the ‘old days’ of reverse lookup for telephones, is creating an analogous relationship between two distinctly different types of information: an IP address and a phone number. Fairclough argues that metaphors and analogies are ideological in that they tend to frame the interests that are dominant in the discourse as interests that are important to society as a whole, while construing non-dominant interests as undermining or harming society in some way (Language and Power 137).

The CPC use of the phone book analogy fits into this description. Their argument for the ‘voluntary’ disclosure of basic subscriber information is based on the need for law enforcement to have immediate access to information that may prevent or stop serious crimes, and also as a way of protecting “young people, children, and seniors” (Kesteren, Hansard Vol. 147 No. 80, 4907). Their description of the crimes that this immediate access to basic subscriber information will prevent is far-reaching. Hon. Michelle Rempel of the CPC says:

It is used by authorities for things like investigating Internet fraud or other online crimes, notifying next of kin after a traffic accident, addressing suicide threats over crisis lines, returning stolen property to rightful owners, or investigating threats posted on or sent over the Internet. (Hansard Vol. 147 No. 80, 4915).

While Blake Richards says:

These activities run the full gambit, whether they are trying to bust a drug gang or human smuggling ring, investigating a threat of physical violence, or trying to identify anonymous child predators who are distributing child abuse images on the Internet (…) Police need access to basic subscriber information to do this critical work, to keep Canadians safe from these criminal activities. In some cases, this is the only avenue to advance a criminal investigation. (Hansard Vol. 147 No. 80, 4940)

By linking the urgent need for ‘voluntary’ disclosure with the prevention of crimes, especially crimes against young people, children, and seniors, the CPC are using the phone book analogy to imply that it would be harmful to society if information was not readily available. The way they’ve framed their argument makes disagreement akin to supporting crime. This is not a new strategy for the CPC, and three NDP MPs picked up on this implication.

Through the course of the debate, NDP MPs Charlie Angus, Ryan Cleary, and Dany Morin each made a reference to something that had happened in the House two years earlier. This was the Protecting Children from Internet Predators Act, or Bill C-30, which was discussed on February 13, 2012 (Hansard Vol. 146 No. 79, 5196) before being introduced the next day by the former CPC Minister of Public Safety, Vic Toews (LEGISInfo). The Bill, also known as the Lawful Access Act, was incredibly controversial, not just because of what it proposed, but because of Toews himself (Austin 111). In his justification for the Bill, Toews famously said to an opposition MP from the Liberal Party that the MP could “either stand with us or with the child pornographers” (Hansard Vol. 146 No. 79, 5196). Bill C-30 was withdrawn before it could reach a second reading (LEGISInfo).

Critics and MPs have argued that Bill C-30 and Bill C-13 (which is the implicit focus of this debate) are in many ways the same. The key difference between them is the wording; where Bill C-30 allowed for ‘mandatory warrantless access’, this has been rephrased in Bill C-13 as ‘lawful access’ (Austin 111-112). The result, according to Austin, was that the intent of Bill C-13 required interpretation by the courts, which ultimately culminated in the ruling of R. v. Spencer (Austin 113).

By bringing up the past, the NDP MPs drew upon the intertextual context of the House of Commons with a presupposition that implied that the current motion under debate was just as controversial as the incident two years earlier with Toews. Angus described the issue of warrantless requests for personal information as the “revenge of Vic Toews” (Hansard Vol. 147 No. 80, 4902). Cleary called the dead Bill C-30 “outrageous” and reminded the House of the backlash by saying that “Toews was appointed to the Manitoba bench” as a result (Hansard Vol. 147 No. 80, 4914). Morin described both Bill C-30 and Bill-13 as being “basically the same”, and called out the comment by Toews as an “utterly reprehensible thing to say” (Hansard Vol. 147 No. 80, 4938).

Returning now to the phone book analogy, opposition MPs questioned whether an IP address was really an example of 411-style information. NDP MP Angus quoted Ontario Privacy Commissioner Ann Cavoukian in saying:

…customer name and address information ties us to our entire digital life, unlike a stationary street address. Therefore, “subscriber information” is far from the modern day equivalent of a publicly available “phone book”. Rather, it is the key to a much wider subset of information. (Hansard Vol. 147 No. 80, 4902)

This statement precisely articulates the difference between personal information about identity (such as a name or a phone number) and personal information that serves the purpose of identification, a concept that was discussed in Chapter 2. While a name, phone number, and address is personal information about identity, an IP address serves the purpose of identification by adding value to the information about identity. Borg, the MP who proposed the motion for this debate, describes this distinction in terms of Wi-Fi use, saying that “in some cases, (an IP address) could tell where someone has been, (and) what they are doing” (Hansard Vol. 147 No. 80, 4941).

The concern about IP addresses created another antagonistic exchange, this time between CPC MP Mike Wallace and Liberal MP Scott Andrews. Wallace begins a lengthy statement by expressing that “in the past some of the topics that have been brought forward on supply days (…) were very much a waste of important time that the opposition is allotted”, but that in this case he felt the issue was important (Hansard Vol. 147 No. 80, 4933). This statement alone is intended to minimize the concerns of the opposition parties as generally being a waste of his time. In 2014 there were a total of 127 sittings in the House of Commons, with only 22 of those days designated as allotted days. Frequency analysis on the transcripts for 2014 revealed that the name ‘Mike Wallace’ only appeared in 68 of the 127 sittings during 2014, meaning he either didn’t rise to speak or didn’t attend the 59 other sittings. His participation in the house during 2014 puts his comment about ‘wasted time’ in perspective.

Wallace goes on to describe the following scenario in regards to subject of the motion; the 1.2 million requests for personal information:

The vast majority of those investigations were agencies requesting voluntary co-operation. Before we go any further, it is voluntary co-operation. They ask and the service providers provide. They are not providing all the content of what an individual may be using or looking at through their IPs or service provider, whether it is a cellphone or the Internet, but they are providing basic address information such as name and address. A simple example would be this. The police could look in the phone book. They know where I live. I know who is on my street. I have lived there for 16 years. Police might come to my door and ask if so-and-so lives next door. I have to say “yes”. I voluntarily provide that information and that is basically what has been asked for. I do not give the police permission to go into my neighbour’s mailbox, open their mail, and read their mail. That is not the permission we are providing and that is being accessed here. (Hansard Vol. 147 No. 80, 4934)

Wallace’s comment that he would “have to say yes” if the police asked about specific people living next door is false. The Supreme Court ruling of R. v. Turcotte states that the right to silence is protected by the Charter, even in a voluntary interaction with police (para. 52). While he may voluntary provide that information, he doesn’t have to. When Robert Aubin of the NDP, asks for clarification from Wallace about the nature of the information being provided, Wallace reiterates that the disclosure of information by telecommunications companies is voluntary, stating:

I would remind the House that this information that we are talking about has been provided voluntarily. Companies can refuse, if they feel so inclined. Then a warrant would be required for further investigation. (Hansard Vol. 147 No. 80, 4935)

Scott Andrews of the Liberal Party, becoming frustrated by Wallace’s remarks, says that he is “missing the point” and asks if he would “give up his IP address voluntarily for the House if it is not such a big important piece of information” (Hansard Vol. 147 No. 80, 4935). Wallace responds with the following statement:

If the police came to me and asked me who I called and what I said to them, I would be happy to provide it for them voluntarily because I have nothing to hide. I am not sure whether that would happen with my colleague from the other side. On the voluntary piece, I have no issue with that. However, I do understand that once we get into that, it is important that people have the right to privacy, to say, “No. If you want to see who I’ve talked to and what we’ve talked about, if you want to see what websites I’m looking at and the information that I’m passing back and forth using the Internet, yes, you do need, if that’s your decision, a warrant to get that information”. That is what is still and continues to be protected under the law. (emphasis added) (Hansard Vol. 147 No. 80, 4935)

This is an interesting statement by Wallace, most notably because when he is challenged by Andrews about providing his personal information, he responds by saying he has “nothing to hide”. The ‘nothing to hide’ argument was discussed in Chapter 2. It depends on a narrow interpretation of privacy as secrecy or concealment by framing the disclosure of personal information as a threat only when people are engaging in unlawful activities. Wallace questions whether Andrews would voluntarily provide his own personal information, which implies that if Andrews didn’t, then he would have something to hide, which further implies his participation in criminal activity.

Law-abiding Canadians

Protecting the ‘privacy rights’ of ‘law-abiding Canadians’ is a common theme in this debate. The motion on which the debate has occurred is specifically concerned with the “indiscriminate disclosure of the personal information of law-abiding Canadians” (Hansard Vol. 147 No. 80, 4899), with Borg using the phrase four more times in her opening statement. She says that the vast amount of Canadians are law-abiding, and that her motion is “meant to counter the government’s nefarious attempts to get information by the back door” (Hansard Vol. 147 No. 80, 4899). She goes on to say that “(l)aw-abiding citizens should be able to benefit from the Internet without the threat of being treated like common criminals” and that the government needs to be held accountable for spying on their own citizens (Hansard Vol. 147 No. 80, 4899).

Hon. Steven Blaney, the first CPC MP to speak to the motion, agrees, explaining that it is important for the government to be mindful of the balance between enforcing the laws and protecting national security, which ensures “that law enforcement has the tools it needs to do its job while law-abiding citizens continue to be free from any form of government harassment” (Hansard Vol. 147 No. 80, 4899).

Mathieu Ravignat of the NDP argues that privacy laws need to be strengthened, not weakened, in order to “take effective legal action against criminals without infringing on the rights of law-abiding Canadians and treating them like criminals” (Hansard Vol. 147 No. 80, 4913). Cleary of the NDP says almost the exact same thing a few minutes later (Hansard Vol. 147 No. 80, 4913). Angus of the NDP likens the 1.2 million requests for personal information to a “massive fishing expedition”, asking why the government has “declared open season on the private rights of law-abiding Canadian citizens” (Hansard Vol. 147 No. 80, 4922). Later, Davies repeats the NDP’s ‘strengthen, not weaken’ argument, by saying that “New Democrats believe that we can and should aggressively pursue criminals and punish them to the full extent of the law without treating law-abiding Canadians like criminals and violating their rights” (Hansard Vol. 147 No. 80, 4945).

Rob Clarke of the CPC echoes Blaney’s statement about balance, saying that he wants to “set the record straight” by reassuring “all Canadians that our government always strikes an appropriate balance between giving law enforcement officials the tools they need to do their job and protecting the privacy of law-abiding Canadians” (Hansard Vol. 147 No. 80, 4950).

Fairclough suggests that in the analysis of the features present in a text, it is also important to consider what other choices might have been made in terms of the orders of discourse that the text draws upon (Language and Power 129). What is not included in a text may have just as much meaning as what is. The overwhelming message in the previous excerpts by both the government and the Official Opposition is that the privacy of law-abiding Canadians must be protected, because violating a person’s privacy is tantamount to treating them like a criminal.

This assertion is problematic for two reasons. First, if violating a person’s privacy necessarily is treating them like a criminal, then why is there so little information about the nature of the 1.2 million requests for information made in 2011? It would stand to reason that a government so committed to supporting the needs of law enforcement would want to publicize the positive effects of a voluntary relationship between telecommunication companies and the police by providing statistics that show crime is declining. It seems like they are using the concept of voluntary disclosure to minimize their responsibility for instances when the sharing of information may have been unnecessary, while also denying that the information they are requesting is private at all, through the use of the phone book analogy.

Second, what is not being said in the repeated references to the privacy rights of law-abiding Canadians, is that non-law abiding citizens have privacy rights too. This was clearly articulated in R. v. Spencer, which ruled in favour of the privacy of a man who was downloading child pornography.

Furthermore, the Charter of Rights and Freedoms has a number of explicit rights that directly apply to people who have been charged and convicted of a crime, which means that the Charter applies to all citizens, not just the ones that abide by the law.

The last and final section of this chapter will focus on Fairclough’s third stage of CDA, explanation. This stage will draw together observations from the previous analyses in order to draw conclusions about the meaning of privacy and how it is shaped by the social structure and relations of power in the House of Commons.

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