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The state of surveillance

Equipped with measures introduced since 9/11 and advancements in technology, the government has resources like never before to track terrorists — and average citizens. Has Canada become a surveillance state?

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Barbie has been accused of many things since she was born in 1959. Saudi Arabia banned her for reasons of morality. Hugo Chavez would have preferred that she look less “American.” Her stereotyped allure also garnered her many other critics — not only in Venezuela. But until now, no one has ever associated her with the Stasi, the defunct East German security and intelligence organization. Yet the German magazine Stern recently did just that, nicknaming Mattel’s latest addition “Barbie-Stasi.” 

Unveiled in February on a New York stage, Hello Barbie can talk and converse with children, much like Siri on iPhones. Conversations are recorded and sent in real time to Mattel and its partner ToyTalk, which can then analyze them and create more appropriate responses. With time, the doll will be able to inquire about the health of Clifford, the family dog. 

Mattel may hope to improve its image with this toy that will be available in stores in the fall. Privacy advocates, on the other hand, see it differently. The Campaign for a Commercial-Free Childhood launched an offensive against what it describes as a chilling invasion of privacy. 

Several hundreds of kilometres north, this doll is the example that comes to mind for Michael Zekulin, a political sciences instructor at the University of Calgary, when talking about Bill C-51 and the global context of the fight against terrorism that has gradually intensified over the last 15 years or so. 

“[Hello Barbie] seems so innocent, like such a good idea, and then you start to think about the implications — that the doll sends the information somewhere without us really knowing what will happen to it. Again, there are no sinister intentions, [but] what seems on the surface to be a good idea may not necessarily be one. Or it can present real problems after the fact,” says the terrorism and radicalization specialist. 

Since September 11, 2001, Canada, like other countries, has implemented major security measures to counter national and international terrorist threats, Bill C-51 being the most recent piece of the puzzle on this side of the border [at press time, the bill had passed third reading and gone to the Senate.] 

But when those planes hit the twin towers of the Word Trade Center, email was just starting to become a part of daily life, and Skype, social media, even smartphones, didn’t exist yet.  

Today Canada finds itself at what Zekulin describes as a turning point in the fight against terrorism, a time when the “tension” has perhaps never been greater between the growing terrorist threat and the technology that’s become an integral part of day-to-day life and whose invasive character is bound only by laws, which are themselves evolving. 

In this context, and with Bill C-51 about to come into effect, there is reason to ask: Has Canada become a surveillance state? And what price must the average citizen pay in the fight against terrorism? 

From September 11th to October 22nd

The Canadian government didn’t waste any time after the Oct. 22, 2014, attack on Parliament. When the House of Commons met the morning of the 23rd, Prime Minister Stephen Harper promised to expedite the work to give more “surveillance, detention and arrest” powers to security services.

The Anti-terrorism Act, 2015 was tabled in Parliament three months later. Bill C-51 followed a series of other measures presented since the September 11th attacks in Manhattan. The omnibus Bill C-36, brought in by the then-Liberal government in fall, 2001, attracted its share of criticism for changes such as preventive detention, secret court hearings and new definitions related to terrorism. 

Other measures were adopted in the years that followed, including the creation of a no-fly list and the obligation of airline companies to provide certain information to the government (Bill C-7), the obligation of telecommunications companies to provide subscriber information to police without a warrant (Bill C-13), and the assertion of the Canadian Security Intelligence Service’s investigation and intervention powers abroad (Bill C-44).

As for Bill C-51, it proposes to give CSIS new powers to intervene in Canada and abroad to reduce and counter threats to Canada’s national security. These actions may even infringe upon rights guaranteed under the Canadian Charter of Rights and Freedoms if the Federal Court and the Minister of Public Safety and Emergency Preparedness allow it, on the basis that the infringement is justified, prima facie, by its limitations clause. In parliamentary committee, CSIS director Michel Coulombe cited the interception of financial transactions and the interruption of telephone communications as examples. 

A vast information-sharing network will also be created across the federal administration, through which agencies and departments will be authorized to disclose any information deemed relevant to 17 organizations, including the RCMP, CSIS and the Communications Security Establishment (CSE). Lastly, certain minimum requirements will be reduced to facilitate the issuance of peace bonds, among other things, and preventive detention, which may be for a longer duration. 

“Radical” bill

Critics of C-51 were quick to take action. University of Ottawa professor Craig Forcese, an expert in national security law, described it as “the most radical bill I’ve seen in my field in Canada.” 

Others, including certain groups and experts that supported the bill, called for major changes, such as the inclusion of more effective oversight and examination mechanisms to monitor the activities of intelligence agencies like CSIS and the CSE. (At the time of writing, the government had not conceded on this point despite some amendments proposed after the House of Commons’ Standing Committee on Public Safety and National Security reviewed the bill.) 

The Canadian Bar Association sided with those who have called for significant changes. A submission presented to the House committee, based on comments from several national CBA sections, noted the excessive scope of some of the proposed measures, particularly those related to the Criminal Code. Appearing for the CBA, Eric Gottardi and Peter Edelmann stressed that the regime for the oversight and examination of national security agencies is insufficient. They criticized the holding of secret court proceedings to authorize CSIS to “flout the constitutional foundations of our legal system.” And they demanded the creation of sufficient controls to oversee the sharing of information within the government administration.

David Elder, an attorney at Stikeman Elliott in Ottawa specializing in privacy and communications law and an executive member of the CBA’s National Privacy and Access Law Section, says that “the main purpose of the CBA’s submission was to ensure that a fair balance is obtained between granting additional state powers and protecting Canadians’ rights to privacy and fundamental freedoms. 

“The CBA believes that in several places in the bill, the provisions go too far, are too vague or invite potential abuse.” 

But these critics, while numerous, are not unanimous, and some have defended the government’s initiative. Ray Boisvert, a former high-ranking member of the intelligence service, notes that “the global climate has not been this threatening since the troubles that preceded the First World War. The time therefore seems to me particularly right to fundamentally revise Canadian law in matters pertaining to security.”

Christian Leuprecht, a political sciences professor at the Royal Military College of Canada and Queen’s University, reports a certain level of hypocrisy on the part of those who throw stones at the intelligence service without fully understanding its needs or how it operates. “I find that certain critics are not very fair or reasonable when it comes to the professionalism of our national security agencies and the people who work in those agencies,” he says, having nevertheless also recommended certain changes.

“We must also keep in mind that they are not a group of cowboys who do just anything.” 

The golden age of surveillance

But considering the context in which these changes were presented, it’s not surprising that they made waves. Since June 2013, documents provided to the media by Edward Snowden, former subcontractor for the US National Security Agency (NSA), have shown an unprecedented portrait of the magnitude of large-scale electronic surveillance being done by the US intelligence service and its partners in the Five Eyes alliance, which includes intelligence services from Canada, the United Kingdom, Australia and New Zealand. 

These leaks have indicated among other things that the NSA obtained the telephone records of 120 million Verizon subscribers and that Internet users’ communications through the services of big names such as Google, Microsoft and Yahoo could be monitored under the PRISM program. 

Former NSA director Keith Alexander described the practice as “collecting the entire haystack;” a wide net is cast in the sea of intercepted information, hoping to find in it the proverbial needle using algorithms and various techniques. 

Bruce Schneier, a US expert in technology and security known as the ”security guru,” qualified the current period as the “golden age of surveillance” in his latest book Data and Goliath: The Hidden Battles to Collect Your Data and Control Your World.

He said in an interview, “everyone uses computers and generates data, and everyone wants this data because it makes them more powerful: Google wants it, Facebook wants it, and your government wants it.” 

The United Kingdom has itself been grappling for several years with the debate about the magnitude of state surveillance of its citizens, with the House of Lords reporting in 2009 that “surveillance is an inescapable part of life in the UK. Every time we make a telephone call, send an email, browse the internet, or even walk down our local high street, our actions may be monitored and recorded. . . . successive UK governments have gradually constructed one of the most extensive and technologically advanced surveillance systems in the world.”

And Canada is no different. Federal intelligence agencies also were the subject of revelations made in recent years, when many documents updated by Edward Snowden confirmed their involvement in projects such as the program to monitor the cellphones and computers of passengers in a Canadian airport for two weeks using the wi-fi network.

In principle, Canadian rules prohibit the CSE from directly targeting Canadians with their information collection activities. But many reckon that in practice, this rule can easily be circumvented by simply collecting massive quantities of metadata without selecting or distinguishing their origin. And in December, the Supreme Court of Canada ruled in Spencer that the police had to obtain a warrant to request that internet service providers share personal information. Privacy advocates considered the judgment to be a breath of fresh air. But almost simultaneously, Ottawa adopted Bill C-13, which grants immunity to these same telecommunications companies to share subscribers’ personal information without a warrant. “Those who continue to believe that Canada is behaving like a good scout and being cautious and fair, and not playing the same game as our more aggressive neighbours to the south, I think they’re failing to consider a significant aspect,” said Andrew Clement, a University of Toronto professor and co-ordinator of the Information Policy Research Program. Clement is particularly interested in the interception of electronic data by the NSA in recent years.

Surveillance state?

So has Canada become a surveillance state? It all depends first on how we define the expression. “It’s a state where citizens are subject to invasive surveillance,” says Schneier. Ben Hayes, an associate fellow at the Transnational Institute specializing in security issues, said that “it’s a society in which surveillance has become so invasive that it threatens the very fibre of democracy.”

“I find it a little simplistic, this idea that Canada is becoming a surveillance state,” says Christian Leuprecht. “It implies that surveillance is inevitably calling into question our rights and freedoms. And I believe that we have considerable evidence in the context of a contemporary democratic state that a strong security capacity complements our rights and freedoms.”

Arthur Cockfield, a law professor at Queen’s University and member of the Surveillance Studies Centre, takes the opposite view. “Absolutely,” he says, “we are increasingly a surveillance state, and there has been a gradual decrease in our right to privacy and our right to not be bothered by agents of the state.” 

“Yes, there is greater surveillance, but is Canada becoming a surveillance state? I certainly don’t think, for example, that Canada is becoming a totalitarian state,” says Daniel Therrien, Privacy Commissioner of Canada.

Therrien has also sounded the alarm regarding Bill C-51, and more specifically the new powers granted to the federal government with respect to the sharing of citizens’ information. According to him, the “relevance” criteria used to permit the exchange of an enormous amount of information throughout the federal administration is too permissive, and the oversight of this activity, including the oversight he promises to carry out himself, will not be sufficient. 

“We are very quickly entering the world of megadata, which relies on the algorithmic analysis of enormous amounts of personal information to decipher trends, predict behaviour and establish links before a particular investigation is launched or a person is suspected of something,” cautioned Therrien in his submission to the Senate committee that studied the bill. 

Security at what price? 

During Question Period in February, Opposition Leader Thomas Mulcair asked the prime minister to guarantee that the new powers under Bill C-51 will not be used against the government’s political opponents. To which Stephen Harper responded “Mr. Speaker, we knew that, with the NDP, it would be only a matter of a couple of weeks before we got into this kind of conspiracy theory. That is what we have come to expect from the black helicopter fleet over there.” 

But despite the Prime Minister’s razzing, the concerns of certain groups, experts and the Opposition seem to have 

resonated with a large part of the population. Not long after the bill was tabled, more than 80 per cent of the population said they supported it, according to an Angus Reid poll. A few weeks later, this support had dropped by almost half, to 45 per cent, according to a survey by another firm, Forum Research.

The criticisms most often made are about the secrecy of operations. While an essential condition for intelligence service activities, this secrecy is also likely to fuel distrust regarding the risks of abuse that may occur in matters pertaining to both privacy and other Charter-guaranteed rights and freedoms — freedom of conscience and of religion, freedom of expression, freedom of opinion and freedom of association. 

The argument that citizens should all simply trust in the professionalism of police officers and intelligence and security agents isn’t convincing to everyone. 

“Police can act in good faith, but they will use the powers given to them,” notes Therrien. “There will be pressure on them to identify criminals, identify terrorists, and they will make full use of the tools given to them. So it’s not enough to trust that agents of the state will act in good faith. There needs to be a rigorous legal framework in place, and I fear that with all the bills that have been tabled, and Bill C-51 in particular, this framework will not be substantial enough to fully ensure that rights are upheld.”

This is all the more important, he notes, since the notion of consent applies differently depending on the personal information context in which we find ourselves — commercial or governmental. “One of the principles of the Privacy Act that applies in the private sector is that companies cannot use consumers’ information without their consent,” Therrien explains. “But in the case of government activities, the notion of consent is almost non-existent.” 

Need for answers

This question of trust in institutions therefore brings us back to the question of adequacy of the rules in effect. For Forcese, this question transcends the strict limits of Bill C-51. He argues that a larger discussion is necessary about all the laws pertaining to national security. 

He said: “Law has not kept up with advancements in technology, which results in outdated legal concepts being repurposed to structure new governmental actions, but imperfectly in my opinion. 

“My concern relates to the fact that we are sleepwalking into the future with inadequate laws and technology that is very quickly becoming a new system that none of us has really considered and from which the government is able to obtain vast amounts of information. 

“The question therefore becomes knowing what happens to all the information.” 

In matters of national security and personal information, this is a $300-million question — the cost of the increase approved in the last federal budget for police and intelligence to combat terrorism. 

And for parents, this could be the $75 question, namely the price of the new Hello Barbie for their child. 

As for the Privacy Commissioner, Therrien hopes to obtain some answers, but he hopes above all for greater transparency in the government’s relationship with its citizens. “New technology — the internet in particular — has yielded new personal development tools that are extremely important for individuals,” he said. “And increasing government surveillance could jeopardize this very important benefit of modern means of communication.”