Monday, October 06, 2014

Canadians deserve to participate in an informed conversation about privacy and surveillance

I was invited to contribute to the Hill Times Policy Briefing on Information Technology that was released today. Here's what I had to say:

Canadians deserve to participate in an informed conversation about privacy and surveillance

A multi-year conversation about privacy and surveillance is finally coming to a head, and it may be one of the defining issues of our time. This is a pivotal aspect of the relationship between citizens and the state, and Canadians have a right to sufficient information about the government’s activities to contribute to an intelligent conversation.

The topic of privacy and government surveillance has been making headlines in Canada for the last several years. Huge numbers – MILLIONS OF REQUESTS! – grab attention, but there is little understanding of the circumstances under which information is requested and disclosed from telecommunications service providers, the extent to which law enforcement seeks information, or even the nature of the information. Canadian law enforcement and security agencies have many of the same powers as their US counterparts. Canada has an equivalent of the USA Patriot Act: this is little-known and the import is little-understood. Few Canadians are aware that laws, including the Customs Act, the Excise Tax Act and the Environment Act, authorize warrantless access to personal information without judicial oversight or notice to the affected persons. Nobody outside government knows how often or how these powers are used.

Ever since the first efforts at legislating “lawful access” years ago, civil society groups have attempted to engage law enforcement and government in a dialogue to understand privacy and warrantless access to information about citizens. Their efforts have reached a crescendo as leaks from Mr. Snowden, furor over Bill C-13 and the Supreme Court of Canada decision in R. v. Spencer draw further attention to the issue. More recently, it has been reported that Rogers and Telus are challenging an order that they turn over call records of more than forty-thousand customers in one “tower dump”.

Law enforcement’s participation in that dialogue can be summed up in the following: “trust us, but it’s not private information anyway so don’t worry about it.” Government and national security agencies stonewall, telling us: “we don’t talk about national security.” Or cabinet ministers state that questioning such powers puts one in league with child pornographers. The credibility of assertions that Canadians are not targeted for mass warrantless surveillance has been dramatically undermined by documents from Mr. Snowden’s cache. Speculation that members of the “Five Eyes” - Canada included - spy on each other’s citizens is left largely uncontradicted.

The result is an informational vacuum in which hard facts are rare, leading to dire and Orwellian speculation.

Until recently, the only visibility into the Canadian government’s demands for information about its citizens had to be coerced from either the telcos or government. Thankfully, a small handful of telcos followed the lead of Google, Twitter and Facebook by releasing “transparency reports” earlier this year. But even here, the information is sparse, incomplete and likely misleading.

The reported data does not tell us, for example, how many requests are related to call records (so-called metadata) or unlisted numbers, in comparison to looking up the owner of a particular phone number? How many requests sought customer info based on IP addresses, which was the focus of the Spencer decision? How many customer accounts are affected?

Canadians have a Charter-guaranteed right to privacy, which can be limited “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” This is a critical balancing act, recognizing that the state has a compelling interest in protecting society and the national security. At the same time, widespread, warrantless surveillance of a population is one of the hallmarks of a police state and the antithesis of how most Canadians imagine their country.

To what extent are we a free and democratic society? The only way this conversation can take place is when law enforcement agencies and national security organizations are transparent about the use of these powers. We already have similar information about the use of wiretap powers under the Criminal Code, tabled in Parliament annually. Providing statistics cannot conceivably undermine security or the effectiveness of investigative techniques.

Canadians have a right to express informed opinions about where the line should be drawn and where the balance between privacy and security should rest. This conversation is one of the most important for our society, and Canadians have a right to an informed discussion. It may well be that Canadians will be satisfied where the lines are drawn and where the balance lies; but without transparency, we can only speculate.

David TS Fraser practices internet and privacy law with the firm McInnes Cooper. He is the author of the Canadian Privacy Law Blog ( and can also be found on Twitter at @privacylawyer. The views expressed are the author’s alone and should not be attributed to his firm or its clients.

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