The Five Eyes – Bill C-51/59

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Our eyes – aren’t they magnificent? They help us to see. To perceive. They give us the ability to process visual data in detail. To observe. To watch. But when you think of our eyes, “surveillance”, isn’t the first word that comes to our minds. Does it? Yet, we all have eyes. Two of them. Why not more? In a way we do, it’s called our five senses and when we can’t use one we rely on the other four to help give us a sense of our surroundings. I’ll throw a number out there for I really don’t know for sure how many people are living on this beautiful planet we call Earth. I’d say 6 billion, perhaps maybe more. And each person has a set of eyes.  That’s a lot of eyes watching things, observing and surveilling. Do you know what’s even more surprising? We now have man-made machines to watch us, to monitor, to observe us; and how many of those man-made machines do we have poking about?

It’s a strange world out there. A lot of bad people even “good” people, doing bad things many of which are done in secret. Despite all these eyes watching our every move, bad things still do happen – perhaps some really don’t care who’s watching. Perhaps they feel “untouchable” because they have the means, methods, and modes to do bad things with no repercussions. We need our eyes, both machine, and human, as a way of protecting ourselves. To anticipate danger so we can move to safety.  Why else would one want to watch, observe and surveil if it’s not for bad behavior?

Perhaps for information.

Information is the new currency that perhaps, in some cases, is more valuable than money. Because with information, you can make as much money as you want by selling and exchanging information. To make things (to sell), to get a better advantage over the competition (to sell), for pleasure or to control.  To restrict one’s movement and freedom means you have the upper advantage and you want to keep it that way.

What about for pleasure or for entertainment. We watch TV, we watch a movie, we watch a performance, we watch people having sex, changing clothes, sharing intimate moments, we watch for revenge or we watch people as a passing time activity walking down a street, waiting for a bus, and so on – let’s face it, we’ve become a society of “peeping-toms”, for people like to people watch and “people watching” has become a worldwide billion dollar operation!

Summer 2017

2015 Harper’s Conservative government introduced the highly contentious anti-terrorist Bill–C51 where critics attacked and criticized it from ‘root to branch’. It was very clear within its first reading that C-51 failed to protect the privacy of Canadians. Amnesty International agreed with “the British Columbia Civil Liberties Association, the Canadian Civil Liberties Association, the Canadian Muslim Lawyers Association, the International Civil Liberties Monitoring Group, La Ligue des Droits et Libertés and the National Council of Canadian Muslims [all which] have stated from the outset that serious human rights shortcomings in Bill C-51 are so numerous and inseparably interrelated that the Bill should be withdrawn in its entirety.

Instead of withdrawing the Bill, it was expedited through the legislative process and, to avoid criticism, passed days before the parliamentary summer break in June 2015. Liberals won the October 2015 election promising to amend the more contentious parts of the Bill and unveiled Bill C-59 days before parliamentary summer break in June 2017, coincidentally, as the Conservatives had done in 2015,  providing very little time and opportunity for review by lawyers, civil liberties groups and advocates. The Bill is large, comprehensive and complicated so perhaps introducing it at the end of the parliamentary sessions was intended to make good summer reading for those who are interested (i.e. Forcese/Roach, BCCLA, CBC, Wark, Amnesty) to form their reactions and opinions before Fall parliamentary sessions begin. What we do know from first glance, while there are some good revisions, it doesn’t go nearly far enough to protect privacy while balancing security. Rather than to further amend the Bill many are still demanding to repeal Bill C-51 in its entirety.

What was so wrong with Bill C-51? Simply, it is seriously deficient of any robust accountability, oversight and review mechanisms to Canada’s national security systems employing a silo approach that often left commissioners with inadequate resources and legal powers.  Since the Bill was rushed through the legislative process it did not provide adequate time for experts and other important voices to review and provide their input by testifying through parliamentary committees. As a result, serious and interconnected human rights problems emerged that human rights groups urged for the Bill to be withdrawn in its entirety for further law reform and to proceed in a more open and consultative manner to ensure it conformed to our human rights international obligations.

Human Rights in Decline – Canada

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Amnesty International has drawn frequent attention in recent years mounting concern that Canada’s domestic human rights record and global human rights standing were both in serious and deeply troubling decline. They point to what has been extremely troubling over the past decade the degree to which Canada has often obstructed, undermined or sought to distance itself from the importance of UN level human rights-related decisions, principles, instruments, and institutions. Internationally, Canada’s diminished role as a human rights champion has been evident in the failure to sign on to important UN human rights treaties.  Amnesty International’s Human Rights Agenda for Canada 2016, highlights the opportunities, the urgency of reversing that decline and also of moving ahead with long-needed reforms to advance stronger human rights protection nationally and internationally.

Amnesty International continues to state its concerns about the new Anti-Terrorism Act including CSIS threat-reduction warrant provisions that anticipate Federal Court judges authorizing violations of the Charter.  The most expansive information sharing provisions in Canadian history without adequate safeguards for accuracy and relevancy or to ensure shared information does not contribute to human rights violations abroad; a vague criminal offence of promoting or advocating the commission of terrorism offences in general which will chill free expression; a no-fly list appeal process that does not satisfy due process; extended powers for detention without charge or trial and further impairment of the already unfair immigration security certificate process.

Amnesty International’s concerns about the Anti-Terrorism Act, [2015] are amplified because of the continuing failure to institute an effective expert review and robust parliamentary oversight of Canada’s national security agencies and Bill C-59 continues to fail to do so as well. This is why many advocates, organizations, and activists are calling to completely repeal the Bill.

In crafting a national security and anti-terrorism strategy, we cannot lose confidence, nor can we ignore certain tenets in our national identity that is embedded in our historic constitutional document when balancing individual rights against the public interest. We do this by having proper oversight and accountability mechanisms in place that would prevent human rights abuses by ensuring it falls in line with our Charter of Human Rights and Freedoms and our country’s international human rights obligations. Meaning, Bill C-51 was in direct conflict of our national identity vis-a-vis our Charter.

“Ten years ago” states Chief Justice Beverly McLaughlin “ the Globe and Mail published a four-part series on the impact of the Charter announced this: “Most Canadians still firmly believe in the Charter, poll finds.” The accompanying article reported that “nearly three-quarters of Canadians view their rights as better protected because of the Charter”.  While Canadians understand the need for surveillance, advocates and activists argue that it must not be at the cost of privacy, freedom of expression and democratic rights. With so many, sophisticated security threats facing our society is it realistic to have both? National security and individual rights? If we had to, which quality would we compromise; national security or individual rights and for each answer how much are we willing to compromise in order to have the security needed to continue living our lives relatively safely in our communities?

As you read on contemplate these very questions because it so happens that we are approaching Fall 2017 parliamentary sessions where the Bill C-59 will be a top priority for Members of Parliament to pass legislation; now is the time to voice your concern about privacy vs security.

Federal Privacy Act

“Privacy?!” you may ask. “what’s that?!”

My point exactly.

trust-government-cartoonPrivacy is an elusive concept that we can be and do things alone without “Big Brother” watching over our shoulder. Not exactly the dictionary term of ‘privacy’ but we’ll get to that in a moment. My question is do we really have privacy among all this new-age-man-made technology? Your TV, tablet, laptop, toaster and cell phone, for example, all have eyes; they are designed to serve you as their primary function but they also have design functions to watch you as well.

Did we ever have 100% privacy? Is it really all that elusive? The answer depends on how religious you are. I mean Adam thought he took a bite out of the ‘forbidden fruit’ in private but God saw. When he became conscious he tried to hide with his clothing – but God saw. So in a sense, we’ve always had “Big Father” watching us too. But that’s subjective let’s get back to human-to-human connectivity and when it is appropriate and respectful to disconnect for the sake of – privacy.

Privacy is a basic human right enshrined in many constitutional charters from countriesbig-brother-thought-police-cjmadden around the world. It is a universal fundamental basic human right. I mean basic like 1+1 =2 that type of basic. Privacy also includes the ability to control what you would like to share with another individual, a group or collective. As stated in the opening paragraphs, information is a new commodity, and the sharing of information for a price is increasingly an ongoing concern for many. Why? Because you can, for example; earn a handsome profit from the sharing [or selling] of information, you can get closer to one another in exchange of information, you can also lose money because of sharing, gain or lose reputation, freedom or imprisonment, torture or even death because of sharing of information. We’re talking about bodily and digital integrity; physical and bio-data; and this is where privacy, personal ownership and control of information – your personal information (no one else, legally, has the right to own it, use it, or give permission without your knowing) – “consent” becomes key as we continue to progress into the digital age.

When businesses and individuals want to express their privacy concerns they are instructed to file a complaint or an investigative request with the Privacy Commissioner.  However, keep in mind, the Privacy Commissioner on the provincial level has greater powers than the Privacy Commissioner at the Federal level. The provincial commissioner has Order-making power with penalties to go along with what is taking place. Meaning a Provincial Privacy Commissioner can go into a company and say what you are doing is wrong and also have the power to make them stop. Federal level – no. In Bill S4 the Federal Privacy Commissioner does not have order-making power, and issues no binding findings – a frustrating and discouraging process for all involved. [2]

big_brother_is_watching_us_561895Our Federal Privacy Act was adopted in 1983 before many of the technological developments that have changed how the government collects, shares and exchange information. While surveillance and information-sharing powers have been updated repeatedly over the years, in order to allow investigative agencies to keep up with technological change, the Privacy Act, a central and important centerpiece of Canada’s federal privacy regime has not been meaningfully updated – it is badly out of date. The Privacy Act must be brought into the digital age with the addition of strong, meaningful and modern protections.  As such our Privacy Commissioner has recommended 16 changes to review and update on how to better formulate the collection of information and sharing and we must work to have these recommendations adopted.

Freedom of Expression

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Amnesty International continues to report that freedom of expression, association, and assembly in Canada have been eroded and violated in a variety of ways that have been both insidious and corrosive. These measures have the aim to target and silence a wide range of voices who are considered to be critical of or in disagreement with the previous [Harper] government’s positions and policies, especially on hot-button issues. Targeting and silencing are delivered in a variety of ways from silencing independent watchdogs, muzzling of government scientists and other civil servants, surveillance of human rights advocates, curtailing access to information, public smear campaigns of the reputation and integrity of individuals who speak critically about government positions.


“The people who say there is nothing to fear from government surveillance unless you have something to hide, have never experienced it – I have, I am afraid and I didn’t have anything to hide. In 2011. I discovered government documents showing that 189 government officials were tasked with following my electronic communications and my movements. The surveillance continued over several years and was vigorous. They even had notes on a talk I did in the middle of the Australian desert. The documents say they were following me to try to find “other motives” for a human rights case our organization filed demanding equitable services for children and young people on reserves.  Democracy is in danger when the government wants to know more about the people than the people know about the government. [Emphasis added] I hope that with a new government we will return to a nation that not only tolerates and accepts but encourages and embraces, outspokenness and debate. I look forward to a Canada that recognizes and celebrates what we all must step up and speak out for each other’s rights.” ~ Cindy Blackstock, Amnesty International 2016 Report.


Regarding human rights defenders and activists, the government allows the sharing of information in relation to legitimate protests and activities, international trade agreements, environmental practices, municipal development activities, labor disputes, Aboriginal land claims and a variety of other areas. We should be concerned with the level of intrusion and protection of privacy which is more than reasonable to have to tolerate as it could put many individuals at risk. Determining when “lawful” advocacy, protest, dissent and even artistic expression becomes “unlawful” doesn’t necessarily mean ‘criminal’.

FBFBIFor example, in response to the recent attacks in Charlottesville, Virginia a number of anti-racist counter-demonstration rallies were successfully organized in a number of Canadian cities.   As successful as these demonstrations were, it gave cause, however, for a larger debate on free expression, for some denouncing hate slid into denouncing speech rights and into dangerous calls for the government to prevent rallies. Some people felt our criminal hate speech laws aren’t expansive enough and that we need to widen the range of what is considered criminalized speech.

The Criminal Code already makes it illegal to counsel anyone to commit hate or a terrorism offense and to instruct or facilitate terrorist acts. However, Bill C-51 wants to create an additional offense called ‘advocating or promoting terrorism.’ Terrorism can be seen as the next evolutionary step from hate crimes for it is a criminal offense to willfully promote or advocate hate.

Bill C-51 would criminalize speech in support of ‘terrorism offenses in general,’ and includes no requirement that the speaker actually intends for a terrorism offense to be committed. Indeed, there’s no requirement that a terrorism offense even takes place.

It’s unclear even to experts exactly what kinds of speech and protest activity may be considered threats to national security if the bill passes; the average Canadian has little hope of feeling confident that their legitimate political activity hasn’t inadvertently crossed the line especially within in the eyes of the government of the day. Bill C-51’s expansive language means that Canadians will likely choose not to express themselves even in completely legal ways rather than risk prosecution. Legitimate speech will be chilled, and our democracy will be worse off for it. [emphasis added]

Additionally, greater information sharing could also lead to identification and suppression of security threats which leads us to be concerned about lack of independent oversight, review and low thresholds for sharing while at the same time risk of mass surveillance and profiling. Bill C-51 enables dragnet information sharing that security experts warn is counterproductive. These provisions must be completely repealed.

5 Eyes: Canada’s Intelligence Surveillance and Sharing Systems

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The amendments to Bill C-51 also appears to give our courts a license to issue warrants in violation of the Canadian Charter of Rights and Freedoms, a radical proposition that is directly contrary to the rule of law and the role of the judiciary. It proposes a myriad of radical changes to Canadian law and to Canada’s national security apparatus, many of which seriously jeopardize the rights and freedoms of Canadians while promising little improvement to public safety.

BCCLA states: “When you think of being secure, you likely think of being safe from physical danger. Bill C-59 defines security as not only safeguarding public safety but also preventing interference with various aspects of public life or ‘the economic or financial stability of Canada’. With this definition, a demonstration in favor of Quebec separatism that fails to procure the proper permit, environmentalists obstructing a pipeline route or a peaceful blockade of a logging road by an Indigenous community could all be seen as threats to national security.”

Bill C-59 gives the government the ability to designate an extraordinarily broad range of activities as potential security threats. They claim that they will use good judgment when deciding which individuals and groups constitute ‘true’ threats. But this discretionary power just means that whether or not a particular group is seen as a threat may turn on whether their cause is politically popular and in line with the views of the government of the day.

“Bill C-51 is meant to facilitate the sharing of information from Federal institutions to better protect the safety and security of Canadians. Associated with this Bill is SISA that provides for unprecedented collection and dissemination of information across State agencies, without enforceable privacy safeguards, and without limiting the collection of information to ‘terrorist activities’. As such, information on law-abiding innocent Canadians can be swept up in this vast net and shared across at least 17 national agencies and with foreign States and private actors. Effective information sharing must be anchored in a commitment to human rights: a failure to do so can result in serious errors that harm individual lives and democratic rights resulting in false profiles and mistaken information and accordingly undermines efficient security. “[emphasis added]

In late 2013, Canadian federal judge Richard Mosley strongly rebuked the CSIS for outsourcing its surveillance of Canadians to overseas partner agencies. A 51-page court ruling asserts that the CSIS and other Canadian federal agencies have been illegally enlisting FVEY allies in global surveillance dragnets while keeping domestic federal courts in the dark.

The FVEY includes; Canada, UK, USA, Australia and New Zealand governments formed in 1946 formed for the purpose of sharing intelligence by various means.  A secretive partnership among the five main English speaking countries through their partnership they have managed to build a global surveillance infrastructure, as Edward Snowden enlightened us, to “master the internet” and “spy” on the world’s various modes of communications. [privacy international]

Michael Giest, Lawyer and Professor warns of the implications of the provisions offered through the Bill C-59 that raises many questions about the disclosure of Canadian involvement in surveillance activities, for example, of airport wifi or uploads and downloads to Internet storage sites. “This should cause some concern considering the expansive definition of infrastructure and a full mandate to acquire, use, analyze, retain or disclose infrastructure information for purposes such as research and development, testing systems, or cyber-security activities.”

With this in mind, Bill C-59 confirms CSE as a cyber agency wielding both offensive and defensive powers and granting it the ability to operate in Canada. This might empower them to use their power to engage in foreign government hacking, access information from domestic internet companies, and disrupt communication activities. The new ‘5 Eyes’ mandate for CSE identifies five broad activities: (1) foreign intelligence; (2) cyber-security and information assurance; (3) defensive cyber operations; (4) active cyber operations; and (5) technical and operational assistance.

Geist continues to warn us that with ministerial and Intelligence Commissioner 13968826-mmmainauthorization, the CSE can be authorized to hack into the network, install or distribute anything on the network, and do anything to remain covert. It may be even be authorized to carry “unselected” foreign intelligence acquisition – the same mass surveillance the NSA has been criticized for – so long as these activities are not directed at Canadians. The CSE or government’s view of an identifiable person is uncertain, raising questions about whether key digital identifiers such as IP addresses are identifiable in their view.

Despite its history and outward robustness, democracy remains a fragile form of government which can be diminished without proper vigilance and checks and balances, including broad citizen participation.”  ~ Suzanne Legault, Commissioner – Access to Information

In an ideal democratic setting, there is trust between people and their institutions while politicians and bureaucrats are accountable to the citizenry. Despite C-59 making some progress, it remains clear that Canadians are still concerned about having their basic fundamental privacy rights respected. The amendments currently offered through Bill C-59 does not provide the improvement of trust and robust privacy protection that Canadians want and deserve.

As MPs return to parliament from summer break, no doubt pushing Bill C-59 through legislation will be at the top of their to-do-list.   As such it serves to everyone’s benefit to give our fullest attention to the purposed security changes by communicating regularly with your local MP to express your views and concerns. Let them know you won’t be satisfied with half-measures and demand for a full repeal of Bill C-51.


References:

2016 Human Rights Agenda for Canada, Defending Rights for All, Amnesty International

Five Eyes Wide Open: How Bill C-59 Mixes Oversight with Expansive Cyber-Security Powers, Michael Geist, 2017

Who’s Watching Whom? Michael Geist Examines Internet Privacy & Surveillance, Michael Geist, 2017