Monday, December 30, 2013

Getting the facts straight as we rush to legislate cyberbullying

Over the past number of months, Halifax Chronicle Herald reporter Selena Ross has been researching the failure of the authorities to lay any charges in the Rehtaeh Parsons case (until political pressure resulted in the case being reopened). This past week, she published her findings into the police investigation and the crown's refusal to lay charges. The fact that it has taken months to get this level of information speaks volumes. They also make depressing reading.

The tragedies of Rehtaeh Parsons and Amanda Todd galvanized attention on the issue and lawmakers have swung into action by passing laws to address it. First, we saw the Cyber-safety Act in Nova Scotia and more recently the federal Conservative government introduced Bill C-13, Protecting Canadians from Online Crime Act. The Nova Scotia statute creates a CyberScan unit, headed by a former cop, to investigate cyberbullying, allows for anti-cyberbullying orders and allows victims (with their parents permission) to sue cyberbullies. The proposed federal legislation makes it a crime to distribute intimate images without consent.

When these laws were introduced, there was much self-congratulatory back slapping about how we are finally doing something, with the clear implication that these laws would have saved the lives of Rehtaeh Parsons and Amanda Todd, if only they’d been in effect earlier. That is simply not true.

Rehtaeh Parsons and Amanda Todd died because the police and the prosecutors did not use the laws that existed to seriously investigate the crimes that they were already the victims of. Making up new crimes may be a useful endeavour, but saying that it was the absence of laws like these that was responsible for these horrendous tragedies is an outright lie.

Amanda Todd was the victim of extortion, harassment, and child pornography at the hands of an adult online and her peers. All of these were crimes the day she was born and continued to be crimes the day that she died. The Royal Canadian Mounted Police failed to investigate, failed to prosecute and failed to give her hope for justice. The British Columbia agencies charged with protecting children in the province failed her as well.

Rehtaeh Parsons was the victim of sexual assault, harassment, child pornography and voyeurism offences at the hands of her peers. All of these (other than the voyeurism offence) were crimes the day she was born and and all were crimes the day that she died. The Royal Canadian Mounted Police and the Halifax Regional Police Service failed to adequately investigate, failed to prosecute and failed to give her hope for justice.

Instead of stepping up and taking responsibility for the horrendous failure of those who are charged with protecting children, investigating and prosecuting crimes, police agencies and the politicians to whom they report have shrewdly deflected the attention of the media and the public towards new initiatives under the clear implication that it was the absence of these laws that failed these two young women.

While both laws (with their flaws) fill an important legal void as far as cyberbullying is concerned, the principal benefit to be derived from these laws is likely that it gives authorities fewer excuses to do nothing when children are the victims of such crimes.

Monday, December 23, 2013

Special prosecutor required to investigate spies and their lawyers lying to the Federal Court

On Saturday, I blogged about the stunning decision of Justice Mosley of the Federal Court in IN THE MATTER OF an application by [xxxxx xxxxxx ] for a warrant pursuant to Sections 12 and 21 of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23, 2013 FC 1275 [PDF](See Canadian Privacy Law Blog: Canadian intelligence agencies lied to obtain warrants, Federal Court judge says).

The Court specifically found that agents of the Canadian Security Intelligence Service -- on the advice of and with the concurrence of their Department of Justice lawyers -- misled the Federal Court of Canada in order to obtain a warrant or warrants under the CSIS Act. The Court specifically found -- as a fact -- that this had occurred:

[117] In my view, as soon as it was determined that the Service would rely on the general power to investigate set out in s 12 of the Act to request second party assistance with the interception of the communications of Canadian subjects abroad, that determination constituted facts known to the affiant which could lead the Court to find that there was no investigative necessity to issue a 30-08 warrant. The failure to disclose that information was the result of a deliberate decision to keep the Court in the dark about the scope and extent of the foreign collection efforts that would flow from the Court’s issuance of a warrant.

[118] This was a breach of the duty of candour owed by the Service and their legal advisors to the Court. It has led to misstatements in the public record about the scope of the authority granted the Service by the issuance of the 30-08 warrants.

Courts are generally hesitant to go so far as to say that an affiant or a legal advisor lied to the court. That the Court did so in this case highlights how significant and egregious it was. This sort of conduct brings the administration of justice into disrepute and casts a pall over every warrant ever issued by the Court.

The decision names five Department of Justice lawyers who made "appearances" at the hearing of this matter but does not specify on whose specific advice CSIS was acting.

The warrant system only works if CSIS and their lawyers are truthful to the Court. This duty of candour is greatly elevated when they are the only ones appearing before the Court, as there is nothing adversarial to ensure that the truth comes out.

This cannot go unnoticed. This is not a "no harm, no foul" situation. The Government needs to appoint a special prosecutor to investigate how this came to be and the law societies governing those five lawyers should investigate what really appears to be egregious professional misconduct. Only a special prosecutor can do the job, as all five of the lawyers were arguing their case on behalf of the Deputy Attorney General of Canada, the country's top lawyer and prosecutor. Anything less would be sweeping this under the rug.

Saturday, December 21, 2013

Canadian intelligence agencies lied to obtain warrants, Federal Court judge says

In what can only be called a stunning decision (IN THE MATTER OF an application by [xxxxx xxxxxx ] for a warrant pursuant to Sections 12 and 21 of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23, 2013 FC 1275 [PDF]), a judge of the Federal Court of Canada has concluded that Canadian intelligence agencies essentially lied to the court in order to get warrants that never would have been granted had they exercised the appropriate level of candor. In addition, they sought to have other members of the "Five Eyes" group carry out surveillance of Canadians that they would have been prohibited from doing themselves.

The Ottawa Citizen does a great job summarizing the decision and its impact: CSIS asked foreign agencies to spy on Canadians, kept court in dark, judge says. It also includes good insights from national security law expert Craig Forcese at the University of Ottawa.

Some extracts from the decision:

“I am satisfied that a decision was made by CSIS officials in consultation with their legal advisers to strategically omit information in applications for 30-08 warrants about their intention to seek the assistance of the foreign partners. As a result, the court was led to believe that all of the interception activity would take place in or under the control of Canada.”

“The principle of comity between nations that implies the acceptance of foreign laws and procedures when Canadian officials are operating abroad ends where clear violations of international law and human rights begin. In tasking the other members of the Five Eyes to intercept the communications of the Canadian targets, CSIS and CSEC officials knew ... this would involve the breach of international law by the requested second parties.”

“There is nothing in any of the material that I have read ... that persuades me that it was the intent of Parliament to give the service authority to engage the collection resources of the second party allies to intercept the private communications of Canadians.”

“It must be made clear, in any grant of a 30-08 warrant, that the warrant does not authorize the interception of the communications of a Canadian person by any foreign service on behalf of the service either directly or through the assistance of CSEC.”

“There must be no further suggestion in any reference to the use of second party assets by CSIS and CSEC, or their legal advisers, that it is being done under the authority of a (section) 21 warrant issued by this court.”

The Citizen also obtained the following unsurprising reactions from CSIS and CSEC, which I would also say don't live up to any reasonable interpretation of "candor":

CSIS: “Protecting Canada’s national security interests in today’s globalized world is increasingly challenging, with little margin for error, especially in matters of counterterrorism. The international character of terrorism means that security is more than ever a shared effort. Everything that CSIS does, alone or with trusted partners, is consistent with Canadian law and Canadian values.

“We understand that protecting Canada’s national security interests is not just an important mandate but a sensitive one. As an organization, we are always looking to become more effective as we adapt to increasingly complicated threat environments.”

CSEC: “We will be reviewing this decision carefully. CSE may only conduct intelligence activities in Canada under its mandate to provide assistance to federal law enforcement and security agencies upon request. These activities respect Canadian laws and Canadian values, and are conducted under the requesting agency’s legal authorities, such as any applicable court warrant. CSE is bound by and must respect any limits in those authorities. All CSE activities are subject to review by the CSE commissioner, who for 16 years has reported that CSEC continues to act lawfully in the conduct of its current activities.”

The Globe & Mail also has good coverage of this decision: Canada’s spy agencies chastised for duping courts.

I can't help but think that though spies are not expected to have scruples and ethics, the Federal Department of Justice lawyers who participated in this likely failed to meet their professional obligations that exist regardless of their political masters and whom they are representing.

The misleading affidavits used at the ex parte hearings to obtain the warrants were prepared by and sworn in front of lawyers who have a free-standing, ethical obligation to never mislead the court. This is noted by Justice Mosley:

[82] The duty of full and frank disclosure in an ex parte proceeding was discussed by the Supreme Court of Canada in Ruby v Canada (Solicitor General) 2002 SCC 75, [2002] 4 S.C.R. 3 at para 27:

In all cases where a party is before the court on an ex parte basis, the party is under a duty of utmost good faith in the representations it makes to the court. The evidence presented must be complete and thorough and no relevant information adverse to the interests of that party may be withheld; Royal Bank, supra, at paragraph 11. Virtually all codes of professional conduct impose such an ethical obligation on lawyers. See for example the Alberta Code of Professional Conduct, c.10, r.8.

[83] The DAGC acknowledges that this duty, also known as the duty of utmost good faith or candour, applies to all of the Service’s ex parte proceedings before the Federal Court: Harkat (Re), 2010 FC 1243 at para 117, rev’d on other grounds 2012 FCA 122, appeal on reserve before the Supreme Court; Charkaoui (Re), 2004 FCA 421 at paras 153, 154; Almrei (Re), 2009 FC 1263, para 498. In making a warrant application pursuant to sections 12 and 21 of the CSIS Act, the Service must present all material facts, favourable or otherwise.

The Court then goes on to note that this misleading conduct was sanctioned by DOJ counsel:

[90] Based on the documentary record before me and Mr. Abbott’s evidence, I am satisfied that a decision was made by CSIS officials in consultation with their legal advisors to strategically omit information in applications for 30-08 warrants about their intention to seek the assistance of the foreign partners. As a result, the Court was led to believe that all of the interception activity would take place in or under the control of Canada.

I find this to be appalling conduct on the part of CSIS, but it is even more egregious that it was in consultation with legal counsel. It brings shame on the profession and also brings the administration of justice into disrepute.

Friday, December 20, 2013

American telcos agree to release transparency info; where are Canadian telcos?

Today, both AT&T and Verizon have agreed to follow Google's (and more recently, Twitter's) lead by releasing transparency reports, disclosing the extent to which they disclose customer information to law enforcement (Verizon to Publish Transparency Report Disclosing Law Enforcement Requests for Customer Information and AT&T Update On Government Surveillance Position: Plans to publish semi-annual transparency report).

Meanwhile, Canadian telecommunications companies and internet service providers are silent even though many disclose customer information to law enforcement without a warrant. It's about time that Canadian telcos step up and tell their customers what information they provide, with and without a warrant.

Monday, December 16, 2013

US congressional group calling out Canada on trade protectionism under the banner of national security

Just posted on the Canadian Cloud Law Blog:

Canadian Cloud Law Blog: US congressional group calling out Canada on trade protectionism under the banner of national security

The National Post is reporting that a group of powerful US lawmakers are calling out Canada on the frivolous use of "National Security" as a thinly-veiled effort at protectionism. In an number of very large scale procurement contracts, regardless of the security classification of the information, the government has disqualified any vendor where the data may cross the Canadian frontiers.

I have seen this first-hand where government paranoia about the cloud simply leads bureaucrats to the risk-averse decision of keeping data exclusively in Canada under the banner of "data sovereignty." This is one of the reasons why Canada lags behind in the adoption of cloud computing and why Canadian governments spend hundreds of millions of dollars on operating and maintaining thousands of little data centres instead of taking advantage of the massive savings offered by cloud computing.

The Treasury Board of Canada has long-standing guidelines that require a risk assessment in every case that takes into account the sensitivity of the data and the risk of exposure, but Public Works appears to have adopted a one size fits all "no-can-do" attitude.

It will be interesting to see if this turns into a proceeding before the international trade tribunals.

See: John Ivison: Powerful U.S. Congress group accuses Canada of trade protectionism under guise of national security | National Post.

Friday, December 13, 2013

Nova Scotia politician alleges cyberbullying, calls the authorities on tweeting teen

I wrote, some time ago, that Nova Scotia's Cyber-safety Act is poorly written, infringes freedom of expression and may be abused. I am afraid to report that I was right. An old cliché says that bad cases make bad law, but we are seeing how a bad law is leading to a bad case.

In the first publicised case referred to the CyberSCAN Units established under the province's Cyber Safety Act, a Nova Scotia politician has called the authorities after a teenager tweeted a topless but public image of the politician. (See: Lenore Zann, L Word actor turned MLA, alleges cyberbullying - Nova Scotia - CBC News and Lenore Zann, actress turned Nova Scotia MLA, launches cyberbullying investigation after teen tweets nude image of her from The L Word | National Post). Apparently Lenore Zann previously appeared topless in the cable TV program "The L Word" and a quick look using your favourite search engine will turn up images. So I'm told.

Not only did the thin-skinned politician call the CyberSCAN Unit on the young fellow, she called his parents, his school principal and the police. And I would say that she also engaged in cyberbullying him. (Not that this is new ... her previous retweets would likely hurt Rob Ford's feelings, too.)

To make it even worse, she called the cybercops on another person who had the temerity to question her judgement in responding to this. The cybercops called him and told him to take down his tweets. I find this incredibly troubling.

The problem with the law is what it captures within the incredibly broad definition of "cyberbullying":

(b) "cyberbullying" means any electronic communication through the use of technology including, without limiting the generality of the foregoing, computers, other electronic devices, social networks, text messaging, instant messaging, websites and electronic mail, typically repeated or with continuing effect, that is intended or ought reasonably be expected to cause fear, intimidation, humiliation, distress or other damage or harm to another person's health, emotional well-being, self-esteem or reputation, and includes assisting or encouraging such communication in any way;

Yup, anything that you do online that hurts someone's self-esteem or their reputation is cyberbullying. Did what this kid do (or was reported to have done) qualify as cyberbullying under this law? Perhaps. Did what she did qualify as cyberbullying? Yup.

Some have suggested that the law has to be so broad to capture all the harmful conduct and we should leave it to the courts and the cybercops to use their judgement in how it is applied. I'm sorry, but as soon as an employee of the government of Nova Scotia picks up the phone and tells a citizen to remove Charter protected speech from the internet, that crosses the line. That goes waaaaay over the line. Canadians have an absolute right to speak truth to power. Canadians have an obligation to call out politicians on hypocrisy and idiocy. An elected official like Lenore Zann, before publicly admonishing a minor, should educate herself about "copyrwite (sic) law", fair dealing and the criminal code. (A bit of free advice: Bill C-12 isn't the law yet and an image taken on a sound stage surrounded by a filming crew for the purpose of international broadcast on cable television likely does not qualify as an intimate image "in respect of which, at the time of the recording, there were circumstances that gave rise to a reasonable expectation of privacy".)

The tragedy is that cyberbullying is a real problem and Lenore Zann is turning this into a farce. The CyberSCAN Unit has a starring role in this farce. The previous government passed a law that is offensive to freedom of expression which will ultimately get struck down and will leave the real victims of cyberbullying with one fewer remedy.

At the risk of having the cybercops calling me (here's my number):

  • The government that jammed this defective law through the legislature without reflection and debate, solely to deflect attention away from police and prosecution failures in the case of Rehtaeh Parsons was contemptible,
  • Lenore Zann is too thin-skinned and has displayed a lack of judgement that makes her unqualified to be an elected official,
  • Lenore Zann comparing herself to Rehtaeh Parsons is OUTRAGEOUS, and
  • if a member of the Cyber Safety Unit actually phoned a citizen and told him to delete a tweet, the Cyber Safety Unit is complicit in this.

And who is going to lose? Freedom of expression and actual victims of cyberbullying. And that's a damn shame.

Update: Here's this evening's CBC TV coverage of the story, including an interview with me. It starts at 7:17.

Tuesday, December 10, 2013

Massive loopholes in Canadian privacy laws permit sharing of personal information with foreign governments and law enforcement

Over the course of the past few weeks, Canadians have been surprised to learn about circumstances where the US immigration authorities appear to have obtained access to sensitive health information about Canadians proposing to travel to the US. (See: Access to Canadian health files by U.S. border agency sparks demands for inquiries | Toronto Star and Toronto woman with bipolar disorder refused entry into U.S. for being a ‘flight risk’ | Toronto Star).

Canadian privacy regulators are looking into these incidents, but it is worth considering the incredibly wide latitude that police in Canada have for sharing the sensitive personal information of Canadians with foreign law enforcement agencies.

The Privacy Act, for example, explicitly authorizes police to hand your information over to foreign cops in a range of circumstances:

Disclosure of personal information

8. (1) Personal information under the control of a government institution shall not, without the consent of the individual to whom it relates, be disclosed by the institution except in accordance with this section.

personal information may be disclosed

(2) Subject to any other Act of Parliament, personal information under the control of a government institution may be disclosed ...

(f) under an agreement or arrangement between the Government of Canada or an institution thereof and ... the government of a foreign state, an international organization of states or an international organization established by the governments of states, or any institution of any such government or organization, for the purpose of administering or enforcing any law or carrying out a lawful investigation;

Notice that it is not limited to written treaties, written agreements or even written arrangements. Also note that it is refers to "administering any law", which can include administering a foreign law, which does not have to be consistent with the Canadian Charter of Rights and Freedoms.

The provinces also have very similar laws with enormous "law enforcement" loopholes. As another example, here's Ontario's Freedom of Information and Protection of Privacy Act on the subject:

Where disclosure permitted

42. (1) An institution shall not disclose personal information in its custody or under its control except, ...

(f) where disclosure is by a law enforcement institution,

(i) to a law enforcement agency in a foreign country under an arrangement, a written agreement or treaty or legislative authority, or

(ii) to another law enforcement agency in Canada;

(g) where disclosure is to an institution or a law enforcement agency in Canada to aid an investigation undertaken with a view to a law enforcement proceeding or from which a law enforcement proceeding is likely to result;

The Privacy Commissioner of Canada pointed out this problem a decade ago, but it fell on deaf ears. This is from her later recommendations in 2008:

However, the Privacy Act does not reflect this increase in international information sharing. The Privacy Act places only two restrictions on disclosures to foreign governments: an agreement or arrangement must exist; and the personal information must be used for administering or enforcing a law or conducting an investigation. The Privacy Act does not even require that the agreement or arrangement be in writing. The Privacy Act does not impose any duty on the disclosing institution to identify the precise purpose for which the data will be disclosed and limit its subsequent use by the foreign government to that purpose, limit the amount of personal information disclosed and restrict further disclosure to third parties. Moreover, the Privacy Act even fails to impose any basic obligations on the Canadian government institution itself to adequately safeguard personal information. ARCHIVED - Proposed Immediate Changes to the Privacy Act (April 29, 2008) Privacy Commissioner of Canada.

Yup, it's essentially carte blanche for government institutions to disclose your information without a warrant for law enforcement purposes and for them to share it with foreign governments. It may be lawful, but it's not right.