Not-so-legitimate aims and other sorry tales of Canadian mass surveillance

by Cynthia Khoo, OpenMedia Communications and Community Engagement Volunteer In joining the global movement against mass surveillance, Canadians face many challenges in terms of getting their own house in order. Between spying on innocent airport travellers, indigenous activists, and Internet subscribers, many Canada’s surveillance policies and practices clearly violate the international human rights law, including the International Principles on the Application of Human Rights to Communications Surveillance. This is especially the case with regard to the principles of “legitimate aim”, "competent judicial authority", and “proportionality”.

The principle of “Legitimate aim” stipulates that communications surveillance should only be permitted in pursuit of the most important state objectives. Communications surveillance should be Proportionate, communication surveillance should be regarded as a highly intrusive act that interferes with the rights to privacy and freedom of opinion and expression, threatening the foundations of a democratic society. Proportionate communications surveillance will typically require prior authorization from a competent judicial authority. However, this last year, we have learned that the Canadian Government has strayed far from its legitimate goal of protecting national security. In fact, we have seen them participate in industrial espionage, diplomatic spying, and suspicionless surveillance of entire populations, and adopt new bills that seeks new legal powers to access data of individuals without a warrant.

• First, the aims of Canadian government surveillance appear questionable at best and illegitimate at worst. For example, Canada recently helped the United States spy on foreign allies at the Toronto G-20 Summit, even going so far as to establish NSA spy posts on Canadian soil. Brazil also accused Canada of industrial espionage after CSEC (the Canadian equivalent of the NSA) was caught red-handed monitoring and collecting private phone and email data from the Brazilian Mines and Energy Ministry. Our government also fails the “do not discriminate” test by targeting political dissenters, including G-20 protesters, indigenous rights activists, environmental groups, and critics of high-profile pipeline initiatives. Lastly, the government’s Digital Privacy Act (Bill S-4) allows telecoms businesses to release personal information to private businesses, prioritizing commercial interests over Canadians' privacy rights and liberties.
• Second, Canadian authorities use legitimate-sounding explanations to disguise illegitimate aims, creating a political shell game of justifications for mass spying. Examples include: hiding rejected online spying provisions in a bill supposedly about cyberbullying; exploiting fears of terrorism to justify political and economic espionage; wrongly conflating dissent and activism with terrorism; and hypocritically claiming to monitor indigenous “Idle No More” movements to protect the activists themselves from violence.
• Third, Canadians cannot evaluate whether a particular aim is legitimate because we often don't even know what the goal is. In 2011, government agencies requested customer data from telecommunications companies 1.2 million times—once every 27 seconds—with no warrant or judicial oversight, meaning citizens have no clue what the purpose of these requests were. Canada's privacy commissioner found that more government bodies are scraping personal information off social networking sites “without any direct relation to a program or activity". Privacy expert David Fraser believes that such activities leave us “talking hypotheticals in an informational vacuum”, also violating the principle of transparency.

Canada's “legitimate aim” issues are so problematic partly because they directly undermine the principle of proportionality, which demands that the state: (1) recognize that communications surveillance is a highly intrusive act that threatens democracy and undermines human rights, and (2) justify all surveillance activities to a competent judicial authority (a court). Without knowing what their justifications really are, we have no way to assess whether or not the surveillance is proportional compared to what is at stake. This is especially critical because mass communications surveillance involves disproportionate dragnetting by definition.

Examples abound of Canada's disproportionate surveillance. CSEC indiscriminately tracked thousands of airline passengers through wireless devices at a major Canadian airport. Large-scale collection of unseparated foreign and domestic communications data, such as financial information and metadata, means that Canadians' data often get swept up even though CSEC is legally forbidden from spying on Canadians. The government’s proposed Bills C-13 and S-4 entrench low barriers of proportionality and immunize telecommunications companies who forward their customers’ private information to law enforcement or private companies without a warrant. Mass license-plate tracking is also on the rise.

Canadians are working together and with international counterparts toward solutions on many fronts. These include: the creation of Canada’s largest-ever Privacy Coalition with support from over 60 organizations and 40,000 people; clear recommendations to rein in CSEC from former federal Privacy Commissioner Chantal Bernier; Joyce Murray MP's private member's Bill C-622, the CSEC Accountability and Transparency Act; Members of Parliament raising insistent questions; legislative studies; watchdog reports; media attention; the Ottawa Statement on Mass Surveillance; multipleconstitutional challenges; and a critical Supreme Court of Canada decision protecting online data privacy.

If you want to join this global movement to protect online privacy and user data from warrantless surveillance, then sign on to the Necessary and Proportionate Principles and fight back here. Canadian readers can also join the Protect our Privacy Coalition here.

Cynthia Khoo is Communications and Community Engagement Volunteer with OpenMedia.org, a community-based organization that safeguards the possibilities of the open Internet.