Agents of the State: The Evolving Role of Online Intermediaries in Public Sector Surveillance

Agents of the State?

The Evolving Role of Online Intermediaries in Public Sector Surveillance

As our day to day activities are increasingly intermediated through a broad range of online intermediaries, the capacity of these intermediaries to greatly impact on the public sector's capacity to surveille citizen activities grows apace. Online intermediaries (which include ISPs, mobile service providers, Internet numbering registries, online payment companies, search engines, blog hosting sites, social networking sites, etc.) are all privately owned organizations whose primary function is to facilitate interactions and communications between citizens. As more activities migrate to some online format, the amount and character of information that flows through such entities increases dramatically. Factor in the scale of online communities, the nature of the online environment (which permits monitoring and control not easily replicable in the physical world), the growing interest in online information repositories (which ranges from traditional criminal/security investigations, to tax investigations and the immigration context, to health information and workplace benefits fraud, and even to political party outreach), and the potential for online intermediaries to dramatically impact on the state's surveillance ability can be dramatic.

Very subtle shifts in the policies or practices of an online intermediary can have broad implications. A simple change to a privacy policy can expose vast amounts of personal information to the public (and, hence, to public sector surveillance). Some jurisprudence suggests that privacy policy terms can set reasonable expectations of privacy a user can assert when attempting to rely on protections enshrined in section 8 of the Charter. In addition, various policy initiatives are designed to leverage these intermediaries in ways that allow for unprecedented efficiency in surveillance. Yet privacy protections and principles are slow to catch up to these at times tectonic shifts in surveillance capabilities.

In an attempt to analyze the scope and nature of this phenomenon as it develops, and with generous funding from the Office of the Privacy Commissioner of Canada's 2010 Contributions Program, CIPPIC has undertaken a research project to study the various facets of this shifting surveillance ecosystem, with a focus on the role which intermediaries play within it. Specifically:

• It examines the competitive, business-related, and policy-driven incentives that guide online intermediaries in creating an architecture that is useful for government surveillance purposes;
• It attempts to describe newly available data sources held or made publicly available by online intermediaries, to provide a quantitative sense of the extent to which such information is being surveilled, and to describe the utility of such information to public sector decision-makers;
• It examines specific policy initiatives, governance models, and legislative activity that are impacting on surveillance activities related to intermediaries;
• It assesses what the proper role for intermediaries should be, in a free and democratic society, with respect to state’s legitimate need to surveille its citizens.

Research consisted of interviews with various experts in the field, including academic experts, law enforcement, civil society advocates, and online service providers. It supplemented these interviews with access to information requests as well as a round table discussion on the topic held in Ottawa in May 2011.

The project is broad in scope. Elements of it are necessarily descriptive, while other elements are normative or even prescriptive. This range of analytical approaches shifts with the context examined. Some contexts (relating to the increasing collection and use of publicly available online information) are newly emergent and require careful study before prescriptions can be easily made. Other contexts (relating to voluntary online intermediary sharing regimes, for example) are better established and warrant a more prescriptive approach.

Project Resources

While the core project itself has reached its terminus, CIPPIC is conducting ongoing research in this field. More information will be posted here as it emerges. Current resources:

Report: "Agents of the State? The Evolving Role of Internet Intermediaries in Facilitating State Surveillance [1]"

Note: The March 2011 version of this report is being updated and will be posted here soon.

FAQ: "Public Data in Public Investigations [1]"

Podcast: "Lawful Access and the Role of Online Intermediaries [mp3] [2]"

Roundtable: (June 2, 2011)

Roundtable Agenda [3]
Presentation: "The Evolving Role of Cyber Surveillance in Public Sector Decision-Making [PPT] [4]" [PDF [5]]