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The Anderson Report

  • June 14, 2015
  • Clayton Rice, Q.C.

In my post titled Anti-Terrorism Law Passed by Canada’s Senate dated June 10, 2015, I made this point. While Parliament flailed ahead with passing Bill C-51 there has been a developing claw back of state surveillance powers in the United States and Britain – actual and proposed. Among the leading democracies, Canada is keeping pace with France in the corrosive intrusion by the state into the private lives of citizens. Then, on June 11, 2015, the Anderson Report was released in Britain which is the most rigorous review of state surveillance laws ever undertaken.

The report is titled A Question of Trust: Report of the Investigatory Powers Review completed by David Anderson, Q.C., an independent reviewer of terrorism legislation, and was conducted pursuant to s. 7 of the Data Retention and Investigatory Powers Act 2014 (DRIPA). Consisting of 382 pages, the report contains an analysis of the dense labyrinth of obscure surveillance laws that are all but impenetrable. “Obscure laws,” Mr. Anderson states at p. 252, para. 13.31, “…corrode democracy itself, because neither the public to whom they apply, nor even the legislators who debate and amend them, fully understand what they mean.” The report concludes in the Executive Summary at p. 8, para. 35 that: “This state of affairs is undemocratic, unnecessary and – in the long run – intolerable.”

I will not review the whole report. But I will give you two important recommendations to support my assertion that even in Britain, a nation that has gone all-but-full-Orwell, these recommendations for reform cannot be ignored by the government.

  • Judges, not ministers, should authorize warrants for the interception of communications. The report notes that the Foreign Office made the opposite point to Mr. Anderson – that judicial authorization might “disadvantage the UK” because judges would be liable to refuse applications that ministers accept. Mr. Anderson responds at p. 272, para. 14.57: “Were it the case that Ministers might be tempted to issue warrants in circumstances where it is illegal to do so, that would seem to me a strong argument in favour of judicial authorization rather than against it.” The report recommends at p. 273, para. 14.60, the use of “specific interception warrants” to be issued by a “Judicial Commissioner”.
  • The report recommends at p. 299, para. 82, a new Independent Surveillance and Intelligence Commission (ISIC) to replace the Interception of Communications Commissioner’s Office (IOCCO), the Office of Surveillance Commissioners (OSC) and the Intelligence Services Commissioner (ISCommr). And, at p. 302, para. 97, it is suggested that consideration be given to granting ISIC more general supervisory authority over the activities of the security and intelligence agencies. New legislation is recommended to define oversight procedures to govern the receipt and exchange of information between agencies. Intelligence sharing should be regulated by law.

The report contains an important limitation. Although Mr. Anderson placed the surveillance debate in a legal context, it was not part of his role to offer an opinion on the bulk data collection practice of Government Communications Headquarters (GCHQ). The report states at p. 20, para. 1.12: “A number of such questions are currently before the courts, which have the benefit of structured and opposing legal submissions and (in the case of the IPT) the facility to examine highly secret evidence, and which are the only bodies that can authoritatively determine them.” Also absent is any recommendation for enhanced powers to regulate encryption that probably brought a sigh of relief from encryption protectionists. Although I did not intend to comment on the parts of the report dealing with encryption and hacking, I will digress because of the currency of the encryption debate that has recently received profile from Apple CEO Tim Cook. Mr. Anderson made the following comments about encryption at pp. 247-8, paras. 13.11 – 13.13:

“There may be all sorts of reasons – not least, secure encryption – why it is not physically possible to intercept a particular communication, or track a particular individual. But the power to do so needs to exist, even if it is only usable in cases where skill or trickery can provide a way around the obstacle. Were it to be otherwise, entire channels of communication could be reduced to lawless spaces in which freedom is enjoyed only by the strong, and evil of all kinds can flourish.

This does not mean that state access to communications should be made easy. Few now contend for a master key to all communications held by the state, for a requirement to hold data locally in unencrypted form, or for a guaranteed facility to insert back doors into any telecommunications system. Such tools threaten the integrity of our communications and the internet itself. Far preferable, on any view, is a law-based system in which encryption keys are handed over (by service providers or by the users themselves) only after properly authorized requests.

But in an imperfect world, in which many communications threatening to the UK are conducted over services whose providers do not or cannot comply with such requests, there is a compelling public interest in being able to penetrate any channel of communication, however partially or sporadically. Paedophiles should not be able to  render themselves undetectable simply by selecting an app on which their communications history will never be known even to the provider. Hence the argument for permitting ingenious or intrusive techniques (such as bulk data analysis or CNE) which may go some way towards enabling otherwise insuperable obstacles to be circumvented. Hence, also, the argument for requiring certain data to be retained so that they can be used in piecing together a crime after the event.”

In an article titled What The U.K. Surveillance Powers Review Says On Encryption And Hacking published by TechCrunch on June 13, 2015, Natasha Lomas observed (as noted elsewhere in the report) that British agencies are not looking for a “permanent trump card” to unlock encryption. That case was not made to Mr. Anderson. According to Ms. Lomas, the push from British security agencies appears to be for a multitude of workarounds to get at encrypted intelligence.

The release of the report came on the heels of the expiration of s. 215 of the US Patriot Act on June 1, 2015, when Senator Rand Paul was giving us classic Americana on the right to privacy. Mr. Anderson also set his report against the privacy backdrop. He is particularly good when demolishing the argument that privacy is a modern concept, a luxury of civilization unknown in primitive societies at pp. 25-26, paras. 2.3 and 2.5 – 2.7:

“…[I]deas of privacy, including the relative freedom of the home from intrusion, are set out in the Code of Hammurabi of Ancient Babylonia, the laws of Ancient Greece and Rome and of Ancient China. References are found to privacy in a range of religious texts, including the Bible, the Koran, and Jewish law. Anthropoligists have suggested that the need for privacy, while sensitive to cultural factors, is not limited to certain cultures.

A classic formulation of privacy is the right to be let alone, once proclaimed to be the ‘most comprehensive of rights and the right most valued by civilized men‘. This right has been associated with human dignity, with the notion of the ‘inviolate personality‘ and with the need for beliefs, thoughts, emotions and sensations to be protected from unwanted prying.

The same principle can be expressed in terms of a positive right to conceal or hide information about ourselves. The idea of a ‘sphere‘ or zone in which privacy should be assured can be extended by the idea that we operate in different spheres in different situations: see for example the approach of the Canadian Supreme Court, which has identified three broad types of privacy interest – territorial, personal and informational – in respect of which different expectations and rules may apply.

Privacy can also be understood in terms of control. Since knowledge is power, the transfer of private information to the state can be seen as a transfer of autonomy and of control. Even if the information is never actually read – for example, an electronic communication which was obtained pursuant to a bulk data collection exercise but not selected for scrutiny – the fact that it could be read may be seen as placing control in the hands of the state. Control may also be transferred when information is given to an online service provider, though with the distinguishing factors that consent is required (nominally, at least) and that service providers, while they may use or sell the data within the limits of their terms and conditions, lack the coercive powers of the state.”

The report was welcomed by Privacy International, one of Britain’s leading privacy charities. In an article titled Obscure Surveillance Laws “Corrode Democracy Itself” Says Review published on June 11, 2015, Eric King, Deputy Director, said:

“The message cannot be clearer: wholesale reform of Britain’s surveillance laws is needed. Not some tweaks, or a change here and there, but full root and branch reform. Our system of governance and oversight hasn’t worked. It took Edward Snowdon, a whistleblower from another country, to shine a light on what was being done in our name, and get us to where we are today.

We now need to start again, debate and discuss every aspect of the vast and incredibly intrusive powers we provide the police and intelligence agencies. David Anderson’s strong recommendations for improvement are the first step towards reform, and now the burden is on the Government, parliament and civil society to ensure that reforms go further and ensure that once and for all, our police and intelligence agencies are brought under the rule of law.”

Two important takeaways, in the context of Canada’s new anti-terrorism law, are these. Among the 124 recommendations of the Anderson Report are those for: (1) the use of judicial warrants; and, (2) a new law governing oversight. These two elements are at the core of actual and proposed reform in the United States and the United Kingdom. And Canada? Well, while this was revving up in the two leading Five Eyes democracies, Canadian law makers missed the bus.

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