A judge of a US District Court ruled that two provisions of the USA Patriot Act are unconstitutional because they allow search warrants to be issued without probable cause. She found that the electronic surveillance and physical searches provisions under the Foreign Intelligence Surveillance Act (FISA), as amended by the Patriot Act, violated the Fourth Amendment's guarantee against unreasonable search and seizure.
As a result of the Patriot Act amendments, FISA had permitted the Executive Branch to conduct searches and surveillance without first having to demonstrate to a court the existence of probable cause that the person had committed a crime. The Executive Branch simply needed to represent that the targeted individual may be an agent of a foreign power and certify that a significant purpose of the surveillance and searches is the gathering of foreign intelligence.
McCarthy Tétrault Notes:
Several provisions of the Patriot Act (including the ones struck down in this decision) have been the source of intense controversy. Various commentators have questioned their constitutionality and raised concerns over privacy implications.
In reaction to privacy concerns, the B.C. government amended the Freedom of Information and Protection of Privacy Act in 2004. The amendments significantly restrict the transfer outside of Canada of personal information held by public bodies in B.C.
The Québec government adopted Bill 86, which amended several private and public sector privacy laws in Québec, including the Act respecting the protection of personal information in the private sector. In particular, it amended Section 17 of the Act to stipulate that every person carrying on an enterprise in Québec who communicates personal information outside Québec or entrusts a person outside Québec with holding, using or communicating such information on his or her behalf, must first take all reasonable steps to ensure that the information will not be used for purposes not relevant to the object of the file or communicated to third persons without the consent of the persons concerned. (Certain specific exceptions are set forth in the Act.)
If the person carrying on an enterprise considers that the information communicated outside Québec will not receive the requisite protection, he or she must refuse to communicate the information or refuse to entrust a person or body outside Québec with holding, using or communicating it on behalf of the person carrying on the enterprise.
Section 18(4) of the Act (which specifies certain situations under which consent is not required for the communication of personal information and which formerly indicated that consent is not required if the communication is required by law) has also been amended to specify that it applies only to the communication of information required by an Act applicable in Québec.
These changes appear to reflect a legislative trend in Canada directed at protecting Canadians' personal information from mandatory disclosure under the Patriot Act.
