Civil liberties campaigners say TransLink is violating riders’ privacy by sharing the personal information of registered Compass Card users with police without a warrant.
The fact that TransLink is giving riders’ travel history to police on request was revealed after an investigation and freedom of information request by The Tyee.
The Compass Card system was introduced in August 2015. As of this Wednesday, there are approximately 1.2-million active cards being used, and half of those are registered.
In a release, Mark Langmead, Director of Compass Operations, defended the policy, saying all data is disclosed under BC’s Freedom of Information and Protection of Privacy Act.
“The privacy of our customers is a top priority for TransLink and something we take very seriously,” said Langmead.
“The Act permits TransLink to use its discretion to disclose personal information to police agencies where we are satisfied that the request for information meets FOIPPA disclosure requirements.”
However, Micheal Vonn, Policy Director of the BC Civil Liberties Association, told Daily Hive we need to look at the nuance of the notion that this is all within the law.
“There is a broad discretion to allow for information disclosures in the privacy legislation of this kind. That discretion doesn’t mean an obligation or a requirement,” she said.
“There’s a choice to be made here and we say that TransLink should be enacting tighter controls.”
Police need to have ‘appropriate justification’
Vonn says many people in the general public are concerned about this kind of sharing of personal information and labelled it a “privacy invasion.”
“If you’ve done nothing wrong, what are the police doing accessing your information?” she said, arguing there needs to be more oversight of the process.
Vonn cedes that it is very important in a free and democratic society that we give police the appropriate tools to fight crime.
However, she said, part of that deal is that when they have the ability to get personal information, we as a society make the police accountable.
“[We require] that they do so by going through a court process so that we are clear that they have the appropriate justification and the appropriate accountability.”
Police requests reviewed case-by-case
Langmead says TransLink reviews each police request on a case-by-case basis and police must cite an active police file number.
“One of the reasons law enforcement requests information from TransLink is for emergency situations that could pose an immediate threat to the safety and security of a person.
“TransLink may also be compelled to provide personal information to police agencies if legally required to do so upon receipt of a subpoena or Production Order.”
A production order legally obligates TransLink to provide the named information and records to the police.
Whilst both warrants and production orders must be approved by a judge, the order compels a third party to supply the data, without police entering the property.
As well, the threshold of suspicion required for a production order to be approved may be lower than that of a warrant in some cases.
Data sharing already being challenged
Vonn says this kind of information sharing is already being legally challenged with regard to telecoms and internet service providers.
“The Supreme Court of Canada in relation to that particular kind of information for those kinds of settings said no, you need a warrant,” she said.
So, Vonn says, what was the law is now being shaped, because “we’re not exactly sure where the lines now flow between what is permissible and impermissible.”
Vonn says it’s worth remembering that when this law was created, the idea of government knowing everywhere you travelled on transit didn’t exist.
“We generate much more information than has ever existed before,” she said.
“Police are much more interested in it, understandably, because these data repositories exist, so we have to give some serious consideration as to what the rules are within this new context.”
“It is the law today, we could find out somewhere down the line through a court challenge that really we haven’t been paying the proper attention to individuals’ constitutional rights.”
“We have an opportunity here to be at the forefront of shaping appropriate policy in this regard, because there are many jurisdictions in Canada and in other countries that have this problem.”
‘If this is concern to you, say so’
In the meantime, Langmead and Vonn advise that if you want to keep your travel information private, riders can unregister their Compass Cards or pay in cash.
However, that will leave you unable to automatically load passes and replace missing cards, adds Langmead.
Langmead said TransLink is always reviewing its policies, including its information disclosure practices.
Vonn says it’s time to make your voice heard, if privacy is important to you.
“This is exactly the area of the law that is being rethought right now,” she said. “If this is concern to you, then say so.
“There’s all kinds of means of saying, “This is not what I understood,” or, “I have a problem with this.” Voice your concerns always, that’s part of our democratic right.”