Yesterday, CBC News reported on a phenomenon occurring in Edmonton, and likely in other Canadian cities: police searches of private-customer ID scanners, like those that may be used upon client entry to bars, clubs, or lounges.
A search of an ID scanner allows the police to learn the name, birth date and address of every person in a bar, according to Mulugeta Tesfay, a lounge owner who was ordered to use an ID scanner as a condition to keeping his establishment open.
While street checks have since declined, according to the chief of Edmonton police, the above-mentioned African-Canadian bar owner interviewed by CBC News suggests that as a result, police may be resorting to other means to collect information on racialized communities in the city.
Normally, when someone is stopped randomly on the street by police, when they are not driving or biking, they are not required to answer questions or produce identification, and they have the right to walk away. In reality of course, these interactions can play out very differently.
If it is indeed the case that street checks are being replaced by more covert methods of obtaining individual’s identification information that remove the individual’s agency in his interaction with the state, then customer ID scanners and their uses deserve a hard and critical look.
CBC News spoke to Steven Penney, a law professor from the University of Alberta, who said that this is a privacy issue, involving provincial private-sector legislation and the Charter, that the courts have not yet dealt with.
“The first issue is whether or not the use of these scanners complies with provincial privacy legislation,” Penney said. If it does, he added, does that amount to customer consent to have their information shared with law enforcement?
The principles that guide the handling of personal information by private establishments in Alberta is covered by the provincial Personal Information Protection Act (PIPA). Under section 7 of PIPA, organizations need an individual’s consent to collect, use, and disclose their personal information. However, there are exceptions to this general principle. Relevant exceptions include:
- If the disclosure of the information is authorized or required by a statute of Alberta or Canada (20(b)(i));
- If the disclosure of the information is to a public body and that public body is authorized or required by an enactment of Alberta or Canada to collect the information from the organization (20(c));
- If the disclosure of the information is to a public body or a law enforcement agency in Canada to assist in an investigation (i) undertaken with a view to a law enforcement proceeding, or (ii) from which a law enforcement proceeding is likely to result (20(f));
- If the disclosure of the information is reasonable for the purposes of an investigation or a legal proceeding (20(m)).
Thus, while in general, one can consent to the collection of their personal information but not to its disclosure to a third party, if that disclosure is required, or even just authorized, by law, non-consensual disclosure does not contravene PIPA.
The Edmonton police told CBC News that authority to search ID scanners came from the Alberta Gaming and Liquor Act, which since 2009 appears to give broad powers of disclosure of customer information to law enforcement.
Section 69.2 of the Act covers the collection of personal information by an establishment licensed to sell liquor.
(1) A licensee may, before allowing a person to enter licensed premises, collect the person’s name, age and photograph.
(2) If a licensee has personal knowledge or reasonably believes that a person referred to in subsection (1) has, at any time within the preceding year, engaged in an activity referred to in section 69(1) or (2), the licensee may, in good faith, disclose the person’s name, age and photograph to other licensees for the purpose of allowing them to determine whether they wish to allow the person to enter licensed premises.
(3) A licensee must, as soon as possible after a request is made by a police officer, disclose to the police officer any information collected under subsection (1) (emphasis added).
Thus, if a police officer asks a bar-owner in Edmonton who uses an ID scanner on her clients (which may in some cases be a condition for keeping her bar open), the Alberta Gaming and Liquor Act legally obliges her to give that personal information to the police.
While the constitutionality of s.69.2 of the Alberta Gaming and Liquor Act has not been put through a court challenge, its application certainly raises some concerns in relation to the strength of the ability to refuse to identify oneself (aside from the obvious exceptions). Does walking into a bar in Alberta, regardless of what I consume while I’m there, necessarily mean that I am waiving the ability I have in other situations to remain anonymous to the state?
This blog post was written by a CCLA student. Opinions expressed do not necessarily reflect the views of the CCLA.