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Canada’s Bill C-51 and The Right To Privacy

  • April 16, 2015
  • Clayton Rice, K.C.

In my post titled Privacy and Personal Autonomy dated January 2, 2015, I agreed with Professor Stephen J. Schulhofer in More Essential Than Ever: The Fourth Amendment in the Twenty-first Century (2012) that the ability of the individual to flourish in a vibrant democracy cannot survive in the absence of opportunities for privacy. Privacy fosters the moral autonomy of the citizen that is vital in a democratic society. Although its most direct expression in Canadian law is found in the right to be secure against unreasonable search and seizure in s. 8 of the Charter of Rights, the right to privacy underwrites the right to vote, the freedom to associate without fear of reprisal and, thus, free speech itself.

Throughout my previous posts on Bill C-51 (Anti-terrorism Act, 2015) I focused on the issues of oversight (accountability), total information awareness, judicial warrants that would authorize breaches of the Charter of Rights and, to a lesser extent, the chill visited on freedom of expression. I have argued that the Bill is excessive, unbalanced and an attack on the rule of law. But, at its most fundamental level, the Bill is an attack on the right to privacy – a right shared by all Canadians, constitutionally protected, a right that is vital to Canadian democracy. In No Place To Hide: Edward Snowdon, the NSA, and the U.S. Surveillance State (2014) journalist Glenn Greenwald described the loss of privacy in the following way, at pp. 173-4:

“What is lost when the privacy realm is abolished are many of the attributes typically associated with quality of life. Most people have experienced how privacy enables liberation from constraint. And we’ve all, conversely, had the experience of engaging in private behaviour when we thought we were alone – dancing, confessing, exploring sexual expression, sharing untested ideas – only to feel shame at having been seen by others.

Only when we believe that nobody else is watching us do we feel free – safe – to truly experiment, to test boundaries, to explore new ways of thinking and being, to explore what it means to be ourselves. What made the Internet so appealing was precisely that it afforded the ability to speak and act anonymously, which is so vital to individual exploration.

For that reason, it is in the realm of privacy where creativity, dissent, and challenge to orthodoxy germinate. A society in which everyone knows they can be watched by the state – where the private realm is effectively eliminated – is one in which those attributes are lost, at both the societal and the individual level.

Mass surveillance by the state is therefore inherently repressive, even in the unlikely case that it is not abused by vindictive officials to do things like gain private information about political opponents. Regardless of how surveillance is used or abused, the limits it imposes on freedom are intrinsic to its existence.”

And Bruce Schneier, a Fellow at the Berkman Center for Internet and Society at Harvard Law School, in Data and Goliath: The Hidden Battles to Collect Your Data and Control Your World ( 2015) puts the loss of privacy in the context of the relationship between predator and prey, at pp. 126-7:

“When we lose privacy, we lose control of how we present ourselves. We lose control when something we say on Facebook to one group of people gets accidentally shared with another, and we lose complete control when our data is collected by the government. ‘How did he know that?’ we ask. How did I lose control of who knows about my traumatic childhood, my penchant for tasteless humour, or my vacation to the Dominican Republic? You may know this feeling: you felt it when your mother friended you on Facebook, or on any other social networking site that used to be just you and your friends. Privacy violations are intrusions.

There’s a strong psychological basis for privacy. Biologist Peter Watts makes the point that a desire for privacy is innate: mammals in particular don’t respond well to surveillance. We consider it a physical threat, because animals in the natural world are surveilled by predators. Surveillance makes us feel like prey, just as it makes the surveillors act like predators.

Psychologists, sociologists, philosophers, novelists, and technologists have all written about the effects of constant surveillance, or even just the perception of constant surveillance. Studies show that we are less healthy, both physically and emotionally. We have feelings of low self-esteem, depression, and anxiety. Surveillance strips us of our dignity. It threatens our very selves as individuals. It’s a dehumanizing tactic employed in prisons and detention camps around the world.”

Mr. Schneier makes a telling point when he demolishes the argument that worrying about a computer reading your emails is like worrying about your dog seeing you naked, at p. 130:

“…[W]hen a computer stores your data, there’s always a risk of exposure. Privacy policies could change tomorrow, permitting new use of old data without your express consent. Some hacker or criminal could break in and steal your data. The organization that has your data could use it in some new and public way, or sell it to another organization. The FBI could serve a National Security Letter on the data owner. On the other hand, there isn’t a court in the world that can get a description of you naked from your dog.”

Most recently, Professor Jon L. Mills, in Privacy in the Media Age (2015) reminds us of legal philosopher Jeremy Bentham’s Panopticon prison, at pp. 162-3:

“Protection from intrusion is more than a nice thing. Constant observation and intrusion have the effect of suppressing thought, individuality, and creativity. Observation is control, particularly when it has a chilling effect on behavior. In Jeremy Bentham’s Panopticon prison, the draped windows of a central tower served to control behavior of prisoners by leaving them unsure as to whether they were being observed, but constantly threatened by the possibility. Writings on privacy have alluded to the Panopticon effect as an example of control by an intrusive society. In response to Edward Snowdon’s disclosure of the National Security Agency’s surveillance tactics, political commentator Peggy Noonan wrote that ever-diminishing expectations of privacy alter the fabric of America. She argues that while privacy is often thought to conflict with Americans’ First Amendment guarantees, they are inextricably codependent. The fear that our most intimate beliefs and communications could be seen by an Edward Snowdon or other anonymous government snoops has a chilling effect on thought and speech. These are the core values that the Constitution seeks to protect in both the free speech provision and the protections against search and seizure. But rather than protect privacy, evidence suggests that U.S. government policy actually has gone so far as to discourage technology that would enhance digital privacy.”

The issues of oversight and total information awareness are interconnected. In my post titled Canada’s Anti-Terrorism Bill Fails Accountability Test dated February 22, 2015, I said that the scope of information sharing is breathtaking given the myriad of non-terrorism purposes. The Security of Canada Information Sharing Act (a bill within the bill) identifies 17 government institutions and departments in Schedule 3. I will not repeat the list here but will identify the Canadian Security Intelligence Service (CSIS) and Communications Security Establishment (CSE) because they are Canada’s two spy agencies that have no effective Parliamentary oversight. Given the impact Bill C-51 will have on the privacy rights of all Canadians, there is a necessity for increased oversight – and not by the same officials as presently constituted; officials that many critics have argued amount to no effective oversight at all. Without effective oversight, abuse is a certainty.

The Security Intelligence Review Committee (SIRC) is responsible for the review of CSIS. Understaffed and underfunded, SIRC is seen by CSIS officials as little more than a nuisance. In an article in iPOLITICS titled Spies, lies and the myth of ‘oversight’ at CSIS dated April 3, 2015, Andrew Mitrovica reported that: “No none at CSIS worries that much about SIRC. They treat it like a visit to the dentist: a necessary nuisance, rarely painful.” Mr. Mitrovica went on to describe the experience of Toronto constitutional lawyer, Rocco Galati, in 1999 when he was representing two men accused of being national security threats:

“Galati suspected that CSIS was snooping on his supposedly sacrosanct conversations with his clients. (He also suspected that he was being followed.) Galati demanded answers in court. CSIS kept mum. The Crown dismissed Galati’s concerns as ridiculous. ‘I knew I was being wiretapped,’ Galati told me in an interview. Turns out he was right all along. In 2012, the Crown belatedly admitted that CSIS (and the Canada Border Services Agency) had tapped all of Galati’s telephone calls with his clients…Galati laughed when I asked him whether he had filed a complaint with SIRC. ‘They’re useless,’ he said. ‘It’s all a smokescreen. SIRC isn’t there to do anything but make it look like it’s doing something to oversee CSIS. Nobody is doing anything to oversee CSIS. They’re out-of-control renegades’.”

In a follow-up article in iPOLITICS titled Ex-spy watchdog Plunkett calls CSIS civilian review ‘a joke’ dated April 10, 2015, Mr. Mitrovica reported an interview with Eva Plunkett, the former Inspector General for CSIS, who said this about the government’s “lackadaisical notions” of accountability:

“They will proceed and do a few minor, cosmetic adjustments…They certainly won’t add any more resources…They will eliminate resources…They seem to forget that people who are given a lot of intrusive authority and power then sometimes get wrapped up in this mindset that they know what’s best for the greater good and they become overzealous. Good people in their own right, but they become overzealous.”

The office of the Inspector General, now closed by the Conservative government, was the only independent resource available to the Minister of Public Safety to support his accountability for CSIS. That leaves SIRC which Ms. Plunkett assessed as follows:

“This government, even though they go on and on about security, they have no interest in accountability so they put their political hacks in that joke of a committee called SIRC…It really is a complaints body…They have a small office who they present their reports to, are all political appointees who come to Ottawa for a day and a half every two months. So where is the oversight there? You know, no one is going to present a report in those offices that is going to ruffle feathers.”

Similar concerns have been expressed about oversight of Communications Security Establishment (CSE). In an article titled Watchdog worried about keeping up with Canada’s electronic spying activities published in the Ottawa Citizen edition of April 4, 2015, Ian MacLeod reported the funding concerns of the Office of the CSE Commissioner. The office is headed by Jean-Pierre Plouffe and is responsible for reviewing CSE’s clandestine foreign-signals intercept activities to determine whether they comply with the law. Mr. MacLeod reported the Commissioner’s 2015-16 planning report, tabled in Parliament on March 31, 2015, as follows:

“Cost sharing related to central agency initiatives and fiscal restraint measures are reducing the flexibility of the office’s available funding…CSE, however, is growing and its activities are changing in response to its changing environment. The risk that the capacity of the office to conduct sufficient review to provide the necessary assurances to the minister will be exceeded is a constant concern.”

One of the issues under Bill C-51 is the power given to CSIS to actively disrupt threats to national security which will lead CSIS to rely on CSE for technical assistance according to some experts. The CSE planning report said this about whether the Commissioner can fulfill the office’s mandate to monitor legal compliance with privacy rights: “An increase in funding…would resolve the capacity issue and enable the Commissioner to continue to provide the necessary assurances to the Minister and to Canadians as to whether CSE is complying with the law and has due regard for the privacy of Canadians.”

The Toronto Star edition of April 1, 2015, also reported on the CSE Commissioner’s report in an article by Alex Boutilier titled Review body for Canada’s electronic spy agency warns it can’t keep up. Growth and fiscal restraint were highlighted as a “constant concern”. Mr. Boutilier also reminded readers that SIRC had warned that, “…vacancies on its five-person board, the inability to investigate CSIS operations with other agencies, and delays in CSIS providing required information were resulting in ‘key risks’ to its mandate.” Mr. Boutilier concluded with the government’s resistance to creating a unified oversight body:

“…[I]n the debate around Bill C-51, which gives new police-like powers to CSIS, the majority Conservatives have continued to resist calls for a unified oversight body to monitor and approve intelligence agencies’ activities. During the debate, Public Safety Minister Steven Blaney has called such oversight ‘needless red tape’.”

The danger that Bill C-51 poses is the breathtaking sweep of information sharing among government agencies with no effective oversight and little incentive for legal compliance. The recent disclosure in the United States of the Drug Enforcement Administration (DEA) running an unlawful domestic spy operation similar to the National Security Agency’s for more than two decades is a blockbuster that received little attention in Canada. The overzealous secret program was used against alleged terrorist activity as well as suspected drug crimes and collected information on millions of innocent Americans. The operation was apparently shut down after the NSA leaks made by Edward Snowdon. (See: Brad Heath. U.S. secretly tracked billions of calls for decades. USA Today. April 8, 2015. And: Andy Greenberg. Want To See Domestic Spying’s Future? Follow The Drug War. American Odyssey. April 10, 2015)

Another example is the use of StingRay technology to vacuum data from cell phones. The StingRay is an International Mobile Subscriber Identity catcher initially developed for the military and intelligence community manufactured by the Harris Corporation. The device mimics a cell tower in order to force mobile phones and other cellular data devices within its range to connect to it. Its use clearly constitutes a search and seizure that has been kept secret by the FBI and U.S. state law enforcement agencies. In an article titled Stingray spying: FBI’s secret deal with police hides phone dragnet from courts in the April 10, 2015, edition of The Guardian, Jessica Glenza and Nicky Woolf wrote:

“The FBI is taking extraordinary and potentially unconstitutional measures to keep local and state police forces from exposing the use of so-called ‘Stingray’ surveillance technology across the United States, according to documents obtained separately by the Guardian and the American Civil Liberties Union.

Multiple non-disclosure agreements (NDAs) revealed in Florida, New York and Maryland this week show federal authorities effectively binding local law enforcement from disclosing any information – even to judges – about the cellphone dragnet technology, its collection capabilities or its existence.

In an arrangement that shocked privacy advocates and local defense attorneys, the secret pact also mandates that police notify the FBI to push for the dismissal of cases if technical specifications of the devices are in danger of being revealed in court.”

It has been repeatedly said that Canadian intelligence agencies operate in the shadows with little oversight. The use of limiting terms such as “little” or “inadequate” or “effective” should be abandoned in favour of more precise language: There is no Parliamentary oversight of CSIS or CSE. Both agencies will acquire an expanded information sharing facility under Bill C-51 and CSIS, in particular, will receive new kinetic powers. The acquisition of private data and the sophistication of developing technology require enhanced oversight – not less. And the policies of the Conservatives will make us less secure, not more, by turning the relationship between Canadians and their government into one of predator and prey.

Oversight, Mr. Blaney, is not red tape.

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