Canada’s Anti-Terrorism Bill in the Post-Snowden Era
- May 2, 2015
- Clayton Rice, Q.C.
Since my last post titled Canada’s Bill C-51 and The Right To Privacy dated April 16, 2015, the proposed anti-terrorism legislation has been in review by the Senate Standing Committee on National Security and Defence. On April 30, 2015, Professor Craig Forcese of the University of Ottawa, in his National Security Law Blog, complimented the Senate committee for conducting a more meaningful review of Bill C-51 than the “spectacle” in the House of Commons. But the concerns that have been expressed by critics of the bill continue. In his latest post, Professor Forcese summarized them this way:
- First, concerns that the government seeks to achieve mostly legitimate security objectives with a bill that overreaches unnecessarily with measures that exceed what is needed to meet these objectives, and thus cause avertable injury to civil liberties while risking serious counter-productive side-effects on the security side (e.g., the new speech crime and the overly broad authorization for CSIS to conduct kinetic threat reduction steps).
- Second, concerns that the bill under-reaches in failing to deal with serious shortcomings in Canadian national security law (e.g., the failure to oblige information sharing by CSIS of the sort that the Air India inquiry adjudged in 2010 necessary both to cure historical problems and also on-going coordination problems between RCMP and CSIS; the failure to cure the stove-piping problem with existing review bodies and extend the remit of review powers to the many government agencies engaged in national security subject to no review for lawfulness and compliance with directives).
- Third, concerns that the bill violates the Charter of Rights and Freedoms (e.g., again the speech crime and also the puzzling new warrant regime for Charter breaches by CSIS).
Professsor Forcese’s concerns were reflected in public protest and testimony before the Senate committee in the last two weeks.
On April 18, 2015, protesters gathered again in cities across Canada to rally against the legislation. A common theme was criticism of the “fear tactic” being used by the Conservative government to push the bill into law. Protesters also spoke out against the provisions of the bill that violate the Charter of Rights such as “speech crime” and the “crack down” on protest and dissent. (See: CBC News. Bill C-51 protesters demand Tories scrap anti-terror legislation; and, CTV News. Protests against Bill C-51 ramp up across Canada. April 18, 2015)
On April 23, 2015, Ian MacLeod reported the testimony of federal Privacy Commissioner Daniel Therrien before the Senate committee in an article in the Ottawa Citizen titled Security-bill snooping goes too far, federal watchdogs warn. Mr. Therrien said: “The bill would potentially lead to disproportionately large amounts of personal information of ordinary, law-abiding citizens being collected and shared. This sets up the prospect of profiling and Big Data analytics on all Canadians. In short, the means chosen are excessive to achieve the end.” Again, as I reviewed in previous posts, a crucial concern was the Security of Canada Information Sharing Act (a bill within the bill) that would allow information sharing between 17 government departments and agencies. The information would only have to be “relevant” to a suspected national security threat. Mr. Therrien’s recommendations were as follows:
- Information should only be shared between government departments and agencies if “necessary” – not merely “relevant” as the bill currently reads – to combat activities that threaten national security.
- The bill should be amended to: ensure that all 17 agencies are subject to independent and effective review, by an expert body and by parliamentarians; remove impediments for information exchange between existing review bodies; and amend the Privacy Act to allow for judicial recourse in cases involving collection, use or disclosure of personal information. The bill should also include a mandatory period of review after three years.
- Fourteen of the 17 agencies to receive information for national security purposes are not subject to dedicated independent review or oversight. To fill that gap, the jurisdiction of one or more of the existing review bodies (monitoring Canada’s two spy agencies and the RCMP) should be extended to include the 14, or a new expert review body with horizontal jurisdiction should be created to review the lawfulness and reasonableness of national security activities.
While Bill C-51 is under Senate review, two things are emerging. First, there is a developing limited contrast between the Canadian government’s national security agenda and the shift in the United States as the expiration date of s. 215 of the Patriot Act approaches on June 1, 2015. In an article in the New York Times issue of April 30, 2015, titled Patriot Act Faces Revisions Backed by Both Parties, Jonathan Weisman and Jennifer Steinhauer reported that, after a decade of national wrangling, bipartisan support has gathered to limit the federal government’s collection of telephone and Internet records:
“On Thursday, a bill that would overhaul the Patriot Act and curtail the so-called metadata surveillance exposed by Edward J. Snowdon was overwhelmingly passed by the House Judiciary Committee and was heading to almost certain passage in that chamber this month.
An identical bill in the Senate – introduced with the support of five Republicans – is gaining support over the objection of Senator Mitch McConell, Republican of Kentucky, who is facing the prospect of his first policy defeat since ascending this year to majority leader.
The push for reform is the strongest demonstration yet of a decade-long shift from a singular focus on national security at the expense of civil liberties to a new balance in the post-Snowden era.
Under the bipartisan bills in the House and Senate, the Patriot Act would be changed to prohibit bulk collection, and sweeps that had operated under the guise of so-called National Security Letters issued by the F.B.I. would end. The data would instead be stored by the phone companies themselves, and could be accessed by intelligence agencies only after approval of the secret Foreign Intelligence Surveillance Act court.
The legislation would also create a panel of experts to advise the FISA court on privacy, civil liberties, and technology matters, while requiring the declassification of all significant FISA court opinions.” (See also: Froomkin. Nearly Two Years After Snowden, Congress Poised To Do Something – Just Not Much. The Intercept. Unofficial Sources. April 28, 2015)
Although Human Rights Watch said the new bill, the USA Freedom Act, is a “critical first step toward reining in” surveillance by the NSA, the New York Times Editorial of May 1, 2015, titled More Excuses on the Patriot Act critically commented that, “the Constitution is not Candy Crush.” The Editorial went on to state:
“The bill does not end the bulk collection of surveillance data under Section 215. Rather, it limits those operations, which, in addition to eroding the Bill of Rights, have been shown to be worthless in protecting America.
The American Civil Liberties Union believes the bill doesn’t sufficiently tighten the definition of the terms used to justify data collection, or properly limit the retention of information about people who are not suspected of wrongdoing, or require meaningful disclosure of so-called ‘backdoor’ searches of databases by the Federal Bureau of Investigation. It does not appoint an advocate to argue before the FISA court on behalf of civil liberties; instead, it simply appoints a panel of experts to advise the court, where only the government is allowed to present a case, in secret.
The A.C.L.U. is not supporting or opposing the bill. But Jameel Jaffer, the organization’s deputy legal director, said it would be better to simply let Section 215 expire.”
Second, sociological and psychological changes have already taken place in the way we behave in a world of ubiquitous territorial surveillance and government invasion of informational privacy by the seizure of personal data. In an article titled Surveillance forces journalists to think and act like spies published by the Committee to Protect Journalists (cpj.org) dated April 27, 2015, Tom Lowenthal argued that the experience of the new generation of news writers is not whether to choose to yield a source’s name but whether a source can be protected to begin with. Mr. Lowenthal wrote:
“Call records, email archives, phone tapping, cell-site location information, smart transit passes, roving bugs, and surveillance cameras – our world defaults to being watched. You can perhaps achieve privacy for a few fleeting moments, but, even then, only with a great deal of effort.
Yet this is journalism’s brave new world. In the United States, the National Security Agency, otherwise known as the NSA, seeks to listen to every electronic communication sent or received. In the U.K., the Government Communications Headquarters, or GCHQ, has succeeded in intercepting and storing every peep that passes over the wires. Commercial spy software FinFisher (also called FinSpy) monitors citizens in at least 20 other countries, according to a report by The Citizen Lab, a research group based at the Munk School of Global Affairs at the University of Toronto in Ontario, Canada. Global Information Society Watch’s global report details the state of communications surveillance in plenty more. Even Canada’s spy agency may be watching Canadians illegally, though the GIS Watch report could not say so conclusively.
If a journalist can protect the identity of his or her sources at all, it’s only with the application of incredible expertise and practice, along with expensive tools. Journalists now compete with spooks and spies, and the spooks have the home-field advantage.”
In another articled titled Mass surveillance: Journalists confront the moment of hesitation published by the Index on Censorship on April 28, 2015, Nicholas Williams discussed the tension journalists’ experience between coverage and self-censorship:
“Wrestling with his fear about Googling the composition of a carbon dioxide bomb after hearing of a failed bombing at LAX, Frankfurter Allgemeine Zeitung journalist, Peter Galison highlights one of the threats of mass surveillance to journalistic practice, ‘The knowledge that I might be walking into a security word search had been enough to make me hesitate.’
Following Edward Snowden’s leaks outlining the capabilities of intelligence agencies around the world to monitor, track and collate private online communications this moment of hesitation before tackling a story has become a major concern to journalists globally.
Pen International surveyed 772 fiction and non-fiction writers and found out that more than 1 in 3 writers in so-called free countries (34%) said they had avoided writing or speaking on a particular topic following the NSA revelations.
While Ryan Gallagher of The Intercept states ‘self-censorship is not the only available option’ he acknowledges that his practices have changed: ‘In the post-Snowdon environment I definitely use encryption tools much more to communicate with people, mainly because more of my colleagues and contacts have now adopted these tools. It’s no longer a niche thing…the Snowdon revelations were a big wake-up call for people.’
Encryption and anonymity software have emerged as the primary set of tools available to journalists to protect themselves, their stories and their sources. Indeed in the light of the leaked information, they have taken on added significance; the ability to depend on robust communication security may be the difference between coverage and self-censorship.”
But encryption is not the only tool available. A growing number of fashion designers are developing innovative ways to enhance personal privacy. On April 21, 2015, Alternet published an article titled The Anti-Surveillance State: Clothes and Gadgets Block Face Recognition Technology, Confuse Drones and Make You (Digitally) Invisible in which Janet Burns reported on an entire industry dedicated to getting privacy back. Ms. Burns wrote: “…[D]esigner Adam Harvey…is one of a growing number of privacy-focused designers and developers ‘exploring new opportunities that are the result of [heightened] surveillance working to establish lines of defence against it. He’s spent the past several years experimenting with strategies for putting control over people’s privacy back in their own hands, in their pockets and on their faces.” Some examples are: Harvey’s drone-thwarting clothing that shields against thermal imaging; Harvey’s CV Dazzle designs for hair and makeup that conceal identity from facial recognition software; and, AVG’s glasses that use a retro-reflective frame coating to interfere with camera flashes allowing the wearer to avoid facial recognition.
Many Canadians conduct themselves on the Internet, on a cell phone or in public differently in the post-Snowden era. That is the consequence of living in a world of diminishing personal autonomy. Turn off your GPS, encrypt your data, don’t use your debit card online and protect your passwords are cliches of everyday life. The increased information sharing under Bill C-51, warrants authorizing Charter violations and lack of Parliamentary oversight are all the more reason to check behind the mirror.