Surveillance: America's Pastime by Jared Rodriguez / t r u t h o u t; Adapted: naixn, Jason Smith / feastoffun.com) (CC BY-NC-SA 2.0)

Surveillance: America's Pastime by Jared Rodriguez / t r u t h o u t; Adapted: naixn, Jason Smith / feastoffun.com) (CC BY-NC-SA 2.0)

Surveillance

Russell Wilson by Keith Allison (CC BY-SA 2.0) https://flic.kr/p/phepKu

The Canadian Privacy and Civil Liberties Punch in the Gut (or Why CSE/CSIS Oversight is Not Enough)

As a lifelong Seattle Seahawks fan, this past Sunday’s Super Bowl – with the Hawks a yard away from winning their second straight championship only to give up a late interception – felt like a punch in the gut. Nearly two days later, I’m still trying to catch my breath. The end to Super Bowl 49 was the actually second time in the week that I was left feeling shocked and speechless. Throughout the week, the combination of Snowden revelations regarding Canada’s role in the daily tracking the Internet activities of millions and the introduction of Bill C-51, the anti-terrorism legislation, left me similarly grappling to make sense of the swirling developments.

It would appear that the immediate response from many, particularly the opposition parties, has centered on the need for improved accountability and oversight. There is no doubt that the failure to address Canada’s weak oversight system of surveillance and intelligence activities is a major flaw (particularly since oversight was actually reduced in 2012).  For a government that introduced the Federal Accountability Act as its very first piece of legislation (and supported more oversight when in opposition) to now dismiss oversight as “red tape” is simply shameful. Better oversight and accountability should be a proverbial “no-brainer”: it bolsters public confidence and, as demonstrated elsewhere, need not undermine security-related operations.

Yet the problem with oversight and accountability as the primary focus is that it leaves the substantive law (in the case of CSE Internet surveillance) or proposed law (as in the case of C-51) largely unaddressed. If we fail to examine the shortcomings within the current law or within Bill C-51, no amount of accountability, oversight, or review will restore the loss of privacy and civil liberties.

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February 3, 2015 10 comments News
You Are Under Surveillance by Matt Katzenberger (CC BY-NC-SA 2.0) https://flic.kr/p/6JBjhQ

Government Documents Reveal Canadian Telcos Envision Surveillance-Ready Networks

After years of failed bills, public debate, and considerable controversy, lawful access legislation received royal assent last week. Public Safety Minister Peter MacKay’s Bill C-13 lumped together measures designed to combat cyberbullying with a series of new warrants to enhance police investigative powers, generating criticism from the Privacy Commissioner of Canada, civil liberties groups, and some prominent victims rights advocates. They argued that the government should have created cyberbullying safeguards without sacrificing privacy.

While the bill would have benefited from some amendments, it remains a far cry from earlier versions that featured mandatory personal information disclosure without court oversight and required Internet providers to install extensive surveillance and interception capabilities within their networks.

The mandatory disclosure of subscriber information rules, which figured prominently in earlier lawful access bills, were gradually reduced in scope and ultimately eliminated altogether. Moreover, a recent Supreme Court ruling raised doubt about the constitutionality of the provisions.

My weekly technology law column (Toronto Star version, homepage version) notes the surveillance and interception capability issue is more complicated, however. The prospect of a total surveillance infrastructure within Canadian Internet networks generated an enormous outcry when proposed in Vic Toews’ 2012 lawful access bill.  Not only did the bill specify the precise required surveillance and interception capabilities, but it also would have established extensive Internet provider reporting requirements and envisioned partial payments by government to help offset the costs for smaller Internet providers.

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December 15, 2014 20 comments Columns
The Fifth Eye by Dustin Ginetz (CC BY-NC-SA 2.0) https://flic.kr/p/id9KHn

Canada’s New “Anti-Terrorism” Bill: Responding to the Courts, Not the Attacks

The government yesterday introduced Bill C-44, the Protection of Canada from Terrorists Act. While some were expecting significant new surveillance, decreased warrant thresholds, and detention measures, this bill is a response to several court decisions, not to the attacks last week in Ottawa and Quebec. A second bill – which might use the U.K. legislative response to terror attacks as a model – is a future possibility, but policy decisions, cabinet approval, legal drafting, and constitutional reviews take time.

Bill C-44, which was to have been tabled on the day of the Ottawa attack, responds to two key issues involving CSIS, Canada’s domestic intelligence agency.  The first involves a federal court case from late last year in which Justice Richard Mosley, a federal court judge, issued a stinging rebuke to Canada’s intelligence agencies (CSEC and CSIS) and the Justice Department, ruling that they misled the court when they applied for warrants to permit the interception of electronic communications. Mosley’s concern stemmed from warrants involving two individuals that were issued in 2009 permitting the interception of communications both in Canada and abroad using Canadian equipment. At the time, the Canadian intelligence agencies did not disclose that they might ask their foreign counterparts (namely the “five eyes” partners in the U.S., U.K., Australia, and New Zealand) to intercept the foreign communications.

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October 28, 2014 7 comments News
Nathan by Jamie McCaffrey (CC BY 2.0) https://flic.kr/p/pLRHqW

Responding to the Attacks: Why We Need to Resist Quick-Fix Anti-Terrorism Measures

Two shocking terror attacks on Canadian soil, one striking at the very heart of the Canadian parliament buildings and both leaving behind dead soldiers. Office buildings, shopping centres, and classrooms placed under lockdown for hours with many confronting violence first hand that is rarely associated with Canada.

Last week’s terror events will leave many searching for answers and seeking assurances from political and security leaders that they will take steps to prevent it from happening again. There will be an obvious temptation to look to the law to “fix” the issue, and if the past is a guide, stronger anti-terror legislation and warnings that Canadians may need to surrender more of their privacy and civil liberties in the name of greater security will soon follow.

My weekly technology law column (Toronto Star version, homepage version) notes that if there are legal solutions that would help foster better security, they should unquestionably be considered. Yet Canada should proceed with caution and recognize that past experience suggests that the unintended consequences that may arise from poorly analyzed legislation may do more harm than good.

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October 27, 2014 15 comments Columns
Who’s Watching Whom: An Examination of Canadian Privacy and Surveillance

Who’s Watching Whom: An Examination of Canadian Privacy and Surveillance

Earlier this week I was pleased to speak at the monthly Geek Girls Toronto event. Hosted at the Mozilla offices, a sold-out audience showed yet again that there is enormous public interest and concern with recent privacy and surveillance developments. A video of the talk, which focused on the problems associated with lawful access, privacy reform, and surveillance, is posted below.

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May 22, 2014 4 comments Keynote Speaking, News, Video