Privacy litigation advanced on three fronts in the United States, Britain and Canada this month. In the United States, the American Civil Liberties Union headed back to the U.S. Court of Appeals, Second Circuit, in the case involving the bulk data collection program of the National Security Agency. In a major development in Britain, the High Court of Justice held that the Data Retention and Investigatory Powers Act (DRIPA) is inconsistent with European Union law. And in Canada, two civil rights groups filed an application in the Ontario Superior Court of Justice challenging the constitutionality of various sections of the Anti-terrorism Act, 2015. The recurring issues of bulk data collection, data retention, accountability and prior judicial authorization were at the forefront.

In my post titled NSA’s ‘Collect It All’ Program Ruled Illegal by Appeals Court dated May 10, 2015, I discussed the opinion in ACLU v. Clapper, 785 F.3d 787 (2d Cir. 2015) where the Second Circuit held that the NSA’s bulk collection of telephone metadata was not authorized by s. 215 of the Patriot Act. On July 14, 2015, the ACLU filed a motion for a preliminary injunction and remand to the district court for consideration of the proper scope of final relief. The motion states, at p. 1: “Because Section 215 was scheduled to sunset on June 1, however, this Court declined to enjoin the surveillance, deeming it ‘prudent to pause to allow an opportunity for debate in Congress that may (or may not) profoundly alter the legal landscape.’ Id. at 826. The congressional debate is now over, and after exhaustive consideration of the issue, Congress has declined to expand the government’s surveillance authority. Yet today the government is continuing – after a brief suspension – to collect Americans’ call records in bulk on the purported authority of precisely the same statutory language this Court has already concluded does not permit it.”

On June 2, 2015, the USA Freedom Act of 2015, Pub. L. 114-23,_Stat._ (2015) (USA Freedom Act) became law. On the same day, the government asked the Foreign Intelligence Surveillance Court (FISC) to resurrect the call-records program. The motion brief states, at pp. 4-5: ‘The government argued that ‘the version of Section 1861 [50 U.S.C. s. 1861] in effect’ was ‘in pertinent part, the same version in effect at the time the [FISC] approved the Government’s earlier application for authority to collect call records in bulk…It argued that Congress’s decision to delay by 180 days the imposition of the ‘additional requirements’ relating to the collection of call records constituted an implicit endorsement of bulk collection during that period and reflected a legislative intent to ‘allow for the orderly termination’ of that collection.”

On June 29, 2015, FISC Judge Michael W. Mosman granted the government’s application. The ACLU motion brief summarizes Judge Moseman’s ruling, at pp. 5-6: “The court reasoned that the USA Freedom Act had effectively restored, for 180 days, the version of section 1861 that had been in effect immediately before the June 1 sunset. June 29 FISC Opinion at 9. It also reasoned that, by delaying for 180 days the implementation of the ‘additional requirements’ for collection of call records, Congress had implicitly ‘authorized bulk acquisition of call detail records during the interim 180-day period,’ id. at 10, and ratified earlier decisions of the FISC authorizing bulk collection, id. at 11, 18. The FISC specifically rejected the reasoning of this Court’s May 7 ruling, writing that it rested ‘[t]o a considerable extent…on mischaracterizations of how [the call-records program] works and on understandings that, if they had once been correct, have been superseded’ by the USA Freedom Act. Id. at 16. On the issue of the constitutionality of the call-records program, the FISC judge reaffirmed earlier FISC opinions holding that the issue was controlled by Smith v. Marylamd, 442 U.S. 735 (1979), and that the call-records program was, therefore, consistent with the Fourth Amendment. Id. at 19-25.”

The ACLU submits, at p. 10, that Judge Mosman overemphasized the absence of a prohibition on bulk collection during the transition period: “The FISC seems to have reasoned that Congress must have intended to authorize bulk collection during the transitional period because it did not expressly prohibit it. See id. at 10-11 (‘Congress could have prohibited bulk data collection…’). But the FISC has it backwards. In our democracy, the government has only the powers the people have granted it; the question is not what surveillance Congress has proscribed, but what surveillance it has permitted.”

The ACLU goes on to argue, at p. 12, that despite the transition period in the USA Freedom Act, the underlying law that authorizes bulk surveillance are the same provisions of the Patriot Act which the Second Circuit held do not justify the NSA’s dragnet collection of phone records: “The crucial fact, however, is that the language the government is relying on to collect call records now is precisely that same language this Court has already concluded does not permit that surveillance. There is no sound reason to accord this language a different meaning now than the Court accorded it in May. Section 1861 did not authorize bulk collection in May, and it does not authorize it now.”

In a statement released on July 14, 2015, Jameel Jaffer, the deputy legal director of the ACLU said: “This dragnet surveillance should never have been launched, and it should certainly be terminated now. Not even the government contends anymore that the program has been effective, and the Second Circuit has already concluded that the program is illegal. It’s a needless and unlawful intrusion into the privacy rights of millions of innocent Americans.” (See: Jenna McLaughlin. ACLU Sues to Stop Bulk Phone-Data Collection, Even if it’s Only Temporary. The Intercept. July 14, 2015)

Three days after the ACLU renewed its motion for a preliminary injunction, the High Court of Justice in Britain released its judgment in Davis et al v. SSHD, [2015] EWHC 2092 regarding the challenge to section 1 of the Data Retention and Investigatory Powers Act (DRIPA) led by Conservative MP David Davis and Labour MP Tom Watson. Section 1 provides that the Secretary of State may require, by a “retention notice”, that a public communications operator retain communications data considered necessary for specified purposes for a period not exceeding twelve months. The claimants argued that section 1 violated Articles 7 and 8 of the Charter of Fundamental Rights of the European Union that protect “private communications” and “personal data”. Lord Justice Bean concluded, at para. 122, that the provision was inconsistent with European Union law and is therefore “disapplied”:

• in so far as access to and use of communications data retained pursuant to a retention notice is permitted for purposes other than the prevention and detection of serious offences or the conduct of criminal prosecutions relating to such offences; and

• in so far as access to the data is not made dependent on a prior review by a court or an independent administrative body whose decision limits access to and use of the data to what is strictly necessary for the purpose of attaining the objective pursued.

However, the court suspended the effect of the ruling until after March 31, 2016, to allow reasonable time for Parliamentary compliance. It is also important to emphasize that the court made three observations, at para. 91, about the requirements that are necessary to ensure legislative compliance with European Union law:

• Derogation and limitations in relation to the protection of personal data must apply only in so far as is strictly necessary so legislation must lay down clear and precise rules governing the scope of derogation and safeguarding rights against the risk of abuse.

• Legislation establishing a general scheme of retention must expressly restrict the purposes for which the scheme is used to precisely defined serious crimes.

• “Above all“, access by the competent national authority to the data retained must be made dependent on a prior review by a court or an independent administrative body whose decision seeks to limit access to the data and their use to what is strictly necessary.

Human rights groups in Britain welcomed the ruling. Carly Nyst, the legal director of Privacy International, commented that under current British law, access to retained data by the police is not subject to independent review or prior authorization. “Police and other authorities,” she said, “simply self-authorise their own access to individuals’ personal information.” (See: Owen Bowcott. High court rules data retention and surveillance legislation unlawful. The Guardian. July 17, 2015)

Then, on July 21, 2015, the Canadian Civil Liberties Association and Canadian Journalists for Free Expression launched a challenge to Canada’s Anti-terrorism Act, 2015 in the Ontario Superior Court of Justice seeking a declaration that various sections of the legislation are unconstitutional. The Notice of Application was filed just three days after the one-month anniversary of the controversial legislation becoming law. I will focus on two aspects of the application that have received universal criticism from constitutional scholars and advocates which I have commented on previously on this blog.

One of the notorious provisions of the omnibus legislation is contained in Part 4 which provides for a new judicial warrant process authorizing the Canadian Security Intelligence Service to take measures in violation of the Charter of Rights. The CCLA Notice of Application asserts the following, at para. 18:

“Part 4 of the Anti-terrorism Act, 2015 amends the Canadian Security Intelligence Act (“CSIS Act“) to provide for a new Federal Court judicial warrant process that preauthorizes CSIS to take measures that violate Canadian law and the constitutional rights of individuals. This warrant application occurs in camera, on an ex parte basis, with no adversarial challenge, with no prospect of appeal, and with no requirement that the actions taken by CSIS be disclosed after the passage of time to the individual targeted. The Act does not provide for the appointment of a special advocate or an amicus curiae to represent the interests of the individual whose Charter rights are at stake. It constitutes an extraordinary inversion of the traditional role of the judiciary and the principles of fundamental justice by asking the judiciary, and not Parliament, to authorize limits on Charter rights as opposed to protecting such rights and preventing their violation. Sections 12.1(3) and 21.1 of the amended CSIS Act violate the liberty and security of the person rights guaranteed under section 7 of the Charter in a manner that is not in accordance with the principles of fundamental justice, and cannot be saved by section 1. They furthermore violate the principles of judicial independence and impartiality and the separation of powers established by the preamble of the Constitution Act, 1867.

Another infamous provision is contained in Part 3 of the Act that amends the Criminal Code to provide that every person commits an indictable offence who, “by communicating statements, knowingly advocates or promotes the commission of terrorism offences in general” while knowing that any of those offences will be committed or is reckless whether they may be committed. This new section of the Code has come under the critical scrutiny of journalists and free speech advocates. The Notice of Application claims that the new offence is unconstitutionally vague and over-broad, at paras. 26 and 28:

“The phrase ‘terrorism offences in general’ in the impugned provision is not defined in the Criminal Code and is unconstitutionally vague and imprecise, in violation of section 7 of the Charter. The impugned provision does not provide fair notice to citizens of the consequence of their speech or conduct. Nor does it sufficiently limit state agents charged with enforcing the provision. As such, the prohibited speech and conduct are neither fixed nor knowable by citizens in advance.

The impugned provision has a chilling effect on freedom of expression and association, even if no prosecution is ever brought. Persons will prefer to remain silent rather than risk the perils of prosecution, especially since the offence can reach even those who do not have a terrorist purpose and there is no statutory defence. Moreover, because it is a new terrorism offence, and terrorism offences are subject to especially broad wiretap authorizations under Part VI of the Criminal Code, it will subject more people to more surveillance for their speech, and not their physical conduct. This, too, will inhibit expression in an unconstitutional manner.”

Tom Henheffer, the executive director of CJFE, in describing the legislation as dangerous and over-broad, said that it potentially subjects reporters to prosecution for “covering or quoting alleged terrorists and their activities”. And, also, government secrecy surrounding the legislation makes it impossible to know the extent to which it has been implemented. Professor Kent Roach of the University of Toronto, one of the leading critics of Bill C-51, observed that the Canadian law is different from the new regime in the United States under the USA Freedom Act which includes provisions for publication of court decisions on spy warrants. “It isn’t so much that Bill C-51 precluded this,” he said. “It is simply silent on it.” (See: John Barber. Canada’s anti-terror legislation faces legal challenge by free speech advocates. The Guardian. July 21, 2015)

I have said in previous posts that Canada’s anti-terrorism law threatens the privacy and security of all Canadians by its over-breadth, provision for vast information sharing among government departments and agencies, and the lack of effective Parliamentary oversight. The provisions that authorize violations of the Charter by judicial warrant are particularly egregious. They are contrary to democratic principles, the rule of law and the impartiality of the judiciary. If the government wants to authorize illegal conduct, the constitutional tools exist in the notwithstanding clause in s. 33 of the Charter and, possibly, by way of constitutional amendment. The suspension of constitutional rights by a stand-alone statute is a concept that is anathema to s. 52(1) of the Charter which states: “The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.” The will of Parliament and statutory law bend to the Constitution, not the other way around. In the anti-terrorism legislation, the government got it backwards.

The next developments in these continuing sagas will be the reply of the government and oral argument in the ACLU motion before the Second Circuit; the new legislation to be brought before the British Parliament in response to the Davis decision; and, the filing of briefs in the CCLA application in Ontario. The ACLU motion will probably lead the pack. I will post updates as new legislation and the cases progress.