Four years ago, Edward Snowden shocked the world with a series of surveillance disclosures that forced many to rethink basic assumptions about the privacy of online activities in light of NSA actions. In the years that have followed, we have learned much more about the role of other countries – including Canada – in similar activities (often in partnership with the NSA). The legality and oversight over these cyber-related programs fell into a murky area, with legal challenges over metadata programs, court decisions that questioned whether Canadian agencies were offside the law, the hurriedly drafted Bill C-51 that sparked widespread criticism, and concern over the oversight and review process that many viewed as inadequate.
Yesterday, the Liberal government unveiled Bill C-59, the first genuine attempt to overhaul Canadian surveillance and security law in decades. The bill is large and complicated, requiring months of study to fully assess its implications (reactions from Forcese/Roach, BCCLA, CBC, Wark, Amnesty). At first glance, however, it addresses some of the core criticisms of the Conservatives’ Bill C-51 and a legal framework that had struggled to keep pace with emerging technologies. Leading the way is an oversight super-structure that replaces the previous silo approach that often left commissioners with inadequate resources and legal powers. The government has promised to spend millions of dollars to give the new oversight structure the resources it needs alongside legal powers that grant better and more effective review of Canadian activities.
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In the aftermath of the Snowden revelations in which the public has become largely numb to new surveillance disclosures, the Canadian reports over the past week will still leave many shocked and appalled. It started with the Ontario Provincial Police mass text messaging thousands of people based on cellphone usage from nearly a year earlier (which is not government surveillance per se but highlights massive geo-location data collection by telecom carriers and extraordinary data retention periods), continued with the deeply disturbing reports of surveillance of journalists in Quebec (which few believe is limited to just Quebec) and culminated in yesterday’s federal court decision that disclosed that CSIS no longer needs warrants for tax records (due to Bill C-51) and took the service to task for misleading the court and violating the law for years on its metadata collection and retention program.
The ruling reveals a level of deception that should eliminate any doubts that the current oversight framework is wholly inadequate and raises questions about Canadian authorities commitment to operating within the law. The court found a breach of a “duty of candour” (which most people would typically call deception or lying) and raises the possibility of a future contempt of court proceeding. While CSIS attempted to downplay the concern by noting that the data collection in question – metadata involving a wide range of information used in a massive data analysis program – was collected under a court order, simply put, the court found that the retention of the data was illegal. Further, the amount of data collection continues to grow (the court states the “scope and volume of incidentally gathered information has been tremendously enlarged”), leading to the retention of metadata that is not part of an active investigation but rather involves non-threat, third party information. In other words, it is precisely the massive, big data metadata analysis program feared by many Canadians.
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Three years ago this month, Edward Snowden shocked the world with a series of disclosures that revealed a myriad of U.S. government-backed surveillance programs. The Snowden revelations sparked a global debate over how to best strike the balance between privacy and security and led to demands for greater telecom transparency.
My weekly technology law column (Toronto Star version, homepage version) notes that the initial Canadian response to the surveillance debate was muted at best. Many Canadians assumed that the Snowden disclosures were largely about U.S. activities. That raised concerns about Canadian data being caught within the U.S. surveillance dragnet, but it did not necessarily implicate the Canadian government in the activities.
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As the world grapples with the recent terrorist attacks in Paris, the policy implications for issues such as the acceptance of refugees and continued military participation in the fight against ISIL have unsurprisingly come to the fore. The attacks have also escalated calls to reconsider plans to reform Canadian privacy and surveillance law, a key election promise from the Trudeau government.
My weekly technology law column (Toronto Star version, homepage version) argues that despite the temptation to slow the re-examination of Canadian privacy and surveillance policy, the government should stay the course. The Liberals voted for Bill C-51, the controversial anti-terror law, during the last Parliament, but promised changes to it if elected. Even in the face of a renewed terror threat, those changes remain essential and should not have an adverse impact on operational efforts to combat terror threats that might surface in Canada.
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Edward Snowden burst into the public consciousness in June 2013 with a series of astonishing revelations about U.S. surveillance activities. Snowden’s primary focus has centered on the U.S., however the steady stream of documents have laid bare the notable role of allied surveillance agencies, including the Communications Security Establishment (CSE), Canada’s signals intelligence agency. The Canadian-related leaks – including disclosures regarding surveillance over millions of Internet downloads, airport wireless networks, spying on the Brazilian government, and the facilitation of spying at the G8 and G20 meetings hosted in Toronto in 2010 – have unsurprisingly inspired some domestic discussion and increased media coverage on privacy and surveillance issues. Yet despite increased public and media attention, the Snowden leaks have thus far failed to generate sustained political debate in Canada.
I am delighted to report that this week the University of Ottawa Press published Law, Privacy and Surveillance in Canada in the Post-Snowden Era, an effort by some of Canada’s leading privacy, security, and surveillance scholars to provide a Canadian-centric perspective on the issues. The book is available for purchase and is also available in its entirety as a free download under a Creative Commons licence. This book is part of the UOP’s collection on law, technology and media (I am pleased to serve as the collection editor) that also includes my earlier collection on the Copyright Pentalogy and a new book from my colleagues Jane Bailey and Valerie Steeves titled eGirls, eCitizens. All books in the collection are available as open access PDF downloads.
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