Electronic Surveillance

Electronic surveillance, given its low-cost/high efficiency and broad-ranging nature, is potentially the most insidious form of surveillance available. 'Lawful Access', a deceptively innocuous term given to the government's attempts to expand its power to spy on Internet activity by removing traditional safegaurds on its ability to use electronic surveillance. It does so by providing new ways by which law enforcemet and other state agents can lawfully access and intercept online activity and information. CIPPIC is working with other groups and individuals concerned about increasing government surveillance to assess and respond to the Canadian government's "lawful access" proposals. CIPPIC is concerned that attempts to update 'lawful access' capabilities are far from targeted and will have serious detrimental impact on Canadians' civil liberties.

Litigation

PIPEDA Complaints

Law Reform

CIPPIC joined the BC Civil Liberties Association, Dr. Christopher Parsons and Privacy International in writing to Canada's two primary national security oversight bodies, SIRC and the CSE Commissioner. Drawing on an analysis of human rights transparency obligations, the letter notes recent efforts by these two bodies to examine cross-border data sharing arrangements entered into by the two agencies they oversee, CSIS and CSE, respectively. It then poses a few questions regarding the oversight bodies' respective abilities to find out about and assess information sharing arrangements, and regarding the processes by which information-sharing arrangements are formed. The letter constitutes the Canadian instance of an international campaign that sent comparable requests to national security oversight bodies in over 40 countries around the world. The objective is to gain a clearer picture of international data flows between national security agencies, and to establish a dialogue with national security oversight bodies on this matter. Read the letter here: https://cippic.ca/uploads/20170913-LT_re_intel_sharing_agreements-CA.pdf

CIPPIC joined a number of civil society groups in a submission outlining concerns regarding a proposition by the Council of Europe to adopt a second protocol to its Cybercrime Convention with the objective of lowering current safeguards in place when law enforcement agencies seek access to data stored in foreign countries. The submission, which was spearheaded by our friends at EDRi, draws establishes a number of preliminary baseline requirements for any international instrument aiming to facilitate cross-border law enforcement access to data. While only a starting point, some of the minimum requirements in the submission will surely need to be addressed if the proposed second protocol is to have the legitimacy and global adoption its authors hope. These include:

  • Limiting the second protocol to addressing gaps left by a reformed MLAT regime
  • The need for competent and independent judicial authorization as a centre-piece to any cross-border data access regime
  • The data hosting state must be notified when a foreign law enforcement agency accesses data hosted within its territory
  • A right to challenge foreign data requests in the country of the affected data subject, and by that country's standards.

In addition, as pointed out by the Electronic Frontiers Foundation in a comment on the second protocol, the second protocol should not operate to lower existing protections such as Canada's prohibition on sharing digital identifiers without judicial authorization or the United States' requirement for probable cause-based production orders.

A letter was sent today on behalf of coalition comprised of 83 leading organizations and experts from Australia, Canada, New Zealand, the United Kingdom and the United States to their respective governments in reaction to renewed state calls for measures that would effectively weaken encryption. The letter responds to a ministerial meeting of the five governments' respective security officials hosted in Ottawa earlier this week, where possibilities for facilitating increased state access to encrypted data were discussed.

The ministerial occurred under the auspices of the 'Five Eyes' - a surveillance partnership between intelligence agencies within the five countries, including Canada's Communications Security Establishment (CSE). It generated a joint Communique, which presented encryption as a serious barrier to public safety efforts and an impediment to state agencies wishing to access the content of some communications for investigative reasons.

The coalition letter, which was organized by Access Now, CIPPIC, and researchers from Citizen Lab, called on the Five Eye governments to "respect the right to use and develop strong encryption" while urging broader public participation in future discussions such as the one that occurred earlier this week. Strong and uncompromised encryption has never been more important, as it protects our most sensitive data, our increasingly critical online interactions, even the integrity of our elections.

Last month, Public Safety Canada followed through on commitments to review and consult on Canada’s national security framework. The process reviews powers that were passed into law following the passage of Bill C-51, Canada’s recent controversial anti-terrorism overhaul, as well as invite a broader debate about Canada’s security apparatus. While many consultation processes have explored expansions of Canada’s national security framework, the current consultation constitutes the first modern day attempt to explore Canada’s national security excesses and deficiencies. Unfortunately, the framing of the consultation demonstrates minimal direct regard for privacy and civil liberties because it is primarily preoccupied with defending the existing security framework while introducing a range of additional intrusive powers. Such powers include some that have been soundly rejected by the Canadian public as drawing the wrong balance between digital privacy and law enforcement objectives, and heavily criticized by legal experts as well as by all of Canada’s federal and provincial privacy commissioners. The government’s framing of the issues are highly deficient. Specifically, the consultation documents make little attempt to explain the privacy and civil liberties implications that can result from the contemplated powers. And while the government is open to suggestions on privacy and civil liberties-enhancing measures, few such proposals are explored in the document itself. The consultation documents also fail to provide detailed suggestions for improving government accountability and transparency surrounding state agencies’ use of already-existent surveillance and investigative tools. 

In light of these deficiencies, we will be discussing a number of the consultation document’s problematic elements in a series of posts authored in conjunction with Christopher Parsons at the Citizen Lab, beginning with today's installment (after the jump, or in PDF format) regarding the government’s reincarnation of a highly controversial telecommunication subscriber identification power.

CIPPIC appeared today before the House of Commons Standing Committee on Access to Information, Privacy & Ethics (ETHI) in its ongoing review of Canada's aging Privacy Act. The Act regulates the federal government's handling of personal information, comprising a central component of Canada's privacy framework. However, it has not received any substantial updates since its introduction in the early 1980s, despite tectonic shifts in the incentives animating government data-related objectives as well as in the technological capability to achieve these objectives. In addition, the government has introduced numerous laws designed to update and expand its ability to collect, use and share private data since the 1980s, including laws specifically designed to address technological developments. In the face of this one-sided expansion of state capabilities, the Privacy Act has simply not kept pace, and is in serious need of modernization if it is to continue to effectively meet its objectives to protect individual privacy rights, facilitate government accountability and safeguard public trust.

CIPPIC's recommendations sought to address key gaps in the Privacy Act, while adding principled protections that will help the Act stay relevant in the future. This includes the addition of principled limits on how long data can be reasonably kept by the government. There is currently no such explicit obligation in the Privacy Act, despite the fact that retention limitations are a hallmark of data protection regimes. An over-riding reasonableness obligation is also necessary, as it would ensure government data practices remain proportionate and in alignment with Charter values. CIPPIC also called for addressing central shortages in the Act's transparency framework, including the incorporation of statistical reporting obligations attaching to all law enforcement electronic surveillance powers, and a general 'openness' obligation compelling the government to proactively explain its privacy practices. Additional recommendations addressed the need for mandating reasonable technical safeguards, a mandatory data breach notification regime and formalizing privacy impact assessment requirements.

CIPPIC and the Citizen Lab, released a report today that describes and analyzes a class of covert electronic surveillance devices called cell site simulators (typically referred to as IMSI Catchers or by brand names such as 'Stingray'). IMSI Catchers operate by impersonating cell phone towers in order to trick mobile devices within range into transmitting digital identifiers, which are then used to track mobile devices or identify the otherwise anonymous individuals associated with them. The report (Executive Summary, FR) argues that the devices are inherently invasive. The geo-location and identification they facilitate engages sensitive privacy interests and, moreover, they are inherently coarse - for each target they are deployed against, the privacy of thousands of non-targeted mobile devices within range is collaterally affected. IMSI Catchers are also intrusive for their interference with the operation of mobile devices, which cannot receive or transmit any phone, text or data communications while engaged with an IMSI Catcher. This can include interference with critical communications such as emergency 911 calls.

Exacerbating the intrusive features of this electronic surveillance tool has been the cloud of secrecy that pervades its use. The report describes significant efforts by journalists and civil society, in Canada and abroad, which sought to uncover use of this device in Canada and the heavy and unnecessary yet persistent resistance these efforts have experienced. The resulting secrecy, which appears to be encouraged by non-disclosure agreements imposed on Canadian agencies by IMSI Catcher vendors, has delayed important public policy debates regarding the appropriate use of these devices, while eroding public confidence. The report calls for the imposition of a range of transparency, proportionality and mitigation measures, modeled on regulatory frameworks adopted by other jurisdictions for IMSI Catchers, by Canadian courts and legislatures for comparably intrusive electronic surveillance tools and by international normative frameworks for digital privacy protection.

Agents of the State

In a submission filed with the Senate Committee on Legal and Constitutional Affairs in May 2007 on Bill C-31, CIPPIC objected to the expansion of personal information used for secondary purposes without the consent of electors. Under the Act, Elections Canada is required to share names and addresses from the National Register of Electors with political parties for fundraising and other campaign purposes. Bill C-31 would have added date of birth to the lists of electors shared for these purposes.  As a result of opposing to this proposal by the Privacy Commissioner of Canada and CIPPIC, sharing of date of birth was removed from the bill before it was passed by the House of Commons.

Privacy in domain name registration (CIRA & ICANN)

In response to planned outsourcing by the British Columbia government of certain database administrative duties to a U.S.-linked company, the British Columbia Privacy Commissioner invited public input by August 6, 2004 on the extent to which the USA Patriot Act allows US authorities to access the personal information of British Columbians, and the implications of such access for public body compliance with privacy legislation.

New information and communication technologies such as the Internet, email, cellphones, and encryption offer individuals new ways to communicate, organize, and engage in criminal behaviours, creating challenges for law enforcement agencies in their efforts to investigate and prosecute criminal activity. On the other hand, these same technologies provide authorities with access to potentially vast amounts of personal information on individuals.

CIPPIC staff discuss issues arising from proposed lawful access legislation.

R v Fearon, 2014 SCC 77, SCC File No 35498

Chehil/MacKenzie v. Her Majesty the Queen, S.C.C. FIle Nos. 34524 & 34397

Telus Communications Company v. Her Majesty the Queen, 2013 SCC 16

PIPEDA complaint that Canada.com's decision to outsource storage of customer emails to the United States failed to provide an adequate level of protection by exposing those emails to the risk of police access through invasive surveillance powers.

Canadian Banks and SWIFT

Bill 622: CSEC Transparency & Accountability

On February 14, 2012, the federal government once more introduced a legislative package of lawful access bills: Bill C-30Protecting Children from Internet Predators Act

Lawful Access (Bills C-50, C-51 & C-52)

Government reintroduces online spying legislation (Winter 2010)

In an open letter to the House of Commons Standing Committee on Access to Information, Privacy and Ethics, CIPPIC and a number of civil society organizations voice serious concerns with respect to Bill C-29, currently before the House and scheduled for second reading early next week. The Bill, ironically dubbed the 'Safeguarding Canadians' Personal Information Act', proposes a number of amendments to Canada's federal privacy protection statute, PIPEDA. Far from improving privacy, the Bill threatens to erode civil liberties in serious ways. Even where it attempts to improve privacy, it falls short by failing to provide any incentive for compliance.

The most troubling elements of the Bill pave the way to a dramatic expansion in the ways in which private businesses can be used in investigations against their own customers. While privacy should never be a bar to legitimate investigations of actual wrongs, the law provides mechanisms such as warrants, production orders, mandatory disclosure laws, and discovery processes that ensure investigations can occur with proper safeguards in place. This Bill essentially bypasses all of these safeguards by adding and expanding exceptions that permit organizations to simply give away their customer's information and includes elements evocative of the US PATRIOT Act and all the civil liberties violations that accompanied it.

Canada's 2010 Digital Economy Consultation

Bills C-46 & C-47, collectively the 'lawful access' or 'online surveillance' legislation, introduced on June 18, 2009.

Public Safety Canada consultations on online surveillance legislation (Fall 2007)

On November 15, 2005, the federal government introduced Bill C-74, the Modernization of Investigative Techniques Act (MITA), "an act to compel all telephone and Internet companies to create and maintain infrastructures that are intercept capable and to provide access to basic subscriber contact information such as a name, address or telephone number." Note that this bill does not introduce new Production Orders, Preservation Orders, or other Criminal Code amendments that are described below as part of the broader package of "Lawful Access" proposals on which the government has been consulting.

Department of Justice consultations on electronic surveillance legislation, March 2005