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Law, Privacy and Surveillance in Canada in the Post-Snowden Era

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Law, Privacy and Surveillance in Canada in the Post-Snowden Era Law, Privacy and Surveillance in Canada in the Post-Snowden Era Edited by Michael Geist University of Ottawa Press LAW, PRIVACY AND SURVEILLANCE IN CANADA IN THE POST-SNOWDEN ERA Law, Privacy and Surveillance in Canada in the Post-Snowden Era.indd 1 15-05-19 14:18 Page left blank intentionally 15-05-19 14:18 Law, Privacy and Surveillance in Canada in the Post-Snowden Era.indd 2 LAW, PRIVACY AND SURVEILLANCE IN CANADA IN THE POST-SNOWDEN ERA EDITED BY Michael Geist University of Ottawa Press 2015 Law, Privacy and Surveillance in Canada in the Post-Snowden Era.indd 3 15-05-19 14:18 The University of Ottawa Press gratefully acknowledges the support extended to its publishing list by Canadian Heritage through the Canada Book Fund, by the Canada Council for the Arts, by the Federation for the Humanities and Social Sciences through the Awards to Scholarly Publications Program and by the University of Ottawa. Copy editing: Joanne Muzak Proofreading: Susan James Typesetting: Édiscript enr. Cover design: Llama Communications and Édiscript enr. Library and Archives Canada Cataloguing in Publication Law, privacy, and surveillance in Canada in the post-Snowden era / edited by Michael Geist. (Law, technology and media) Includes bibliographical references. Issued in print and electronic formats. ISBN 978-0-7766-2207-1 (paperback). ISBN 978-0-7766-2183-8 (pdf). ISBN 978-0-7766-2182-1 (epub) 1. Electronic surveillance — Law and legislation — Canada. 2. Privacy, Right of — Canada. 3. Technology and law — Canada. I. Geist, Michael, 1968-, author, editor II. Series: Law, technology and media KE9328.L34 2015 345.71’052 C2015-903727-1 KF9670.L34 2015 C2015-903728-X © Michael Geist, 2015 under Creative Commons License Attribution — Non Commercial Share Alike 3.0 (CC BY-NC-SA 3.0) Printed in Canada Law, Privacy and Surveillance in Canada in the Post-Snowden Era.indd 4 15-05-19 14:18 T able of Contents Acknowledgements ........................................................................... vii Introduction ........................................................................................ 1 Part I: Understanding Surveillance I Canadian Internet “Boomerang” Traffic and Mass NSA Surveillance: Responding to Privacy and Network Sovereignty Challenges Andrew Clement and Jonathan A. Obar .................................... 13 II Forgotten Surveillance: Covert Human Intelligence Sources in Canada in a Post-9/11 World Steve Hewitt ............................................................................... 45 Part II: Legal Issues III Foreign Intelligence in an Inter-Networked World: Time for a Re-Evaluation Tamir Israel ................................................................................ 71 IV Lawful Illegality: What Snowden Has Taught Us about the Legal Infrastructure of the Surveillance State Lisa M. Austin ........................................................................... 103 V Law, Logarithms, and Liberties: Legal Issues Arising from CSE’s Metadata Collection Initiatives Craig Forcese .............................................................................. 127 Part III: Reforms and Accountability VI Permanent Accountability Gaps and Partial Remedies Kent Roach ................................................................................. 163 VII The Failure of Official Accountability and the Rise of Guerrilla Accountability Reg Whitaker ............................................................................. 205 Law, Privacy and Surveillance in Canada in the Post-Snowden Era.indd 5 15-05-19 14:18 VIII Why Watching the Watchers Isn’t Enough: Canadian Surveillance Law in the Post-Snowden Era Michael Geist ............................................................................. 225 IX Stuck on the Agenda: Drawing Lessons from the Stagnation of “Lawful Access” Legislation in Canada Christopher Parsons ................................................................... 257 About the Contributors .................................................................... 285 Law, Privacy and Surveillance in Canada in the Post-Snowden Era.indd 6 15-05-19 14:18 Acknowledgements ublishing a peer-reviewed book with numerous contributors on Pa rapidly evolving, high-profile issue requires a special group of contributors, publishers, editors, and reviewers. Thanks are due first and foremost to the contributors. Each was presented with challeng- ing timelines to complete their submissions and often asked to submit revised versions based on reviewer comments within days. Each con- tributor embraced this project with enthusiasm and professionalism. Many thanks go to Wesley Wark, who contributed enormously to the vision behind the book and to the recruitment of contributors. Once the initial articles were delivered, many additional con- tributors emerged. Thanks to a terrific group of student editors, including Emily Murray, Jennifer Shamie, Chelsea Sauve, Kavi Sivasothy, Mila Falkenstein, and Karina Pogosyan, who provided citation and fact checking reviews. Thanks also to Elizabeth Schwaiger, who oversaw the produc- tion of the book from copy-editing through proofreading, layout, and printing. Thanks to the University of Ottawa Press, particularly Lara Mainville and Dominike Thomas, who offered tremendous support for this book project. Thanks as well to the Social Sciences and Humanities Research Council of Canada and the Canada Research Chair program, as this book benefited from their financial support. Thanks also to my colleagues and family for their support throughout this project. It is a great honour to work with such an exceptional, supportive group of colleagues at the University of Ottawa. My wife, Allison, remains the foundation of our family and a remarkable source of love and support. Jordan, Ethan, and Gabrielle are more than just fantastic children, who make their parents proud each and every day. They are true digital citizens, engaged with issues related to surveillance and privacy, as they are part of a gen- eration that does not know a world without the Internet, nor, it would appear, without network surveillance. March 2015 Ottawa, Ontario vii Law, Privacy and Surveillance in Canada in the Post-Snowden Era.indd 7 15-05-19 14:18 Page left blank intentionally 15-05-19 14:18 Law, Privacy and Surveillance in Canada in the Post-Snowden Era.indd 8 I ntroduction dward Snowden burst into the public consciousness in June 2013 Ewith a series of astonishing revelations about US surveillance activities. The Snowden leaks, which have continued for more than eighteen months, have confirmed that fears of all-encompassing network surveillance and data capture that were envisioned as worst- case scenarios more than a decade ago have become reality. With scant debate or public awareness, surveillance agencies around the world have become remarkably adept at capturing network commu- nications at the very time that billions of people have come to rely on the Internet as their primary tool for communication, social connec- tion, and information gathering. As a result, the “open Internet” is a far cry from what millions of users might have otherwise expected or believed, with openness more aptly referencing their openly acces- sible private communications. Snowden’s primary focus has been centred on the United States. However, the steady stream of documents have laid bare the notable role of allied surveillance agencies, including the Communications Security Establishment (CSE), Canada’s signals intelligence agency. The Canadian-related leaks — including disclosures regarding sur- veillance over millions of Internet downloads, airport wireless net- works, spying on the Brazilian government, and the facilitation of spying at the G8 and G20 meetings hosted in Toronto in 2010 — have Law, Privacy and Surveillance in Canada in the Post-Snowden Era.indd 1 15-05-19 14:18 2 LAW, PRIVACY AND SURVEILLANCE IN CANADA IN THE POST-SNOWDEN ERA unsurprisingly inspired some domestic discussion and increased media coverage of privacy and surveillance issues. Yet, despite increased public and media attention, the Snowden leaks have thus far failed to generate sustained political debate in Canada. Privacy issues, particularly lawful access and warrantless disclosure of Internet and telecom subscriber information, emerged as important issues in 2014 and forced the government to respond to mounting concerns over the privacy protections afforded to Canadians’ personal information. Moreover, the Supreme Court of Canada issued the landmark R. v. Spencer decision in June 2014, which removed any lingering doubt that Canadians have a reason- able expectation of privacy in subscriber information. While that decision may have led to changes in law enforcement practices, and revelations about subscriber information requests resulted in some uncomfortable questions in the House of Commons, neither had any discernable impact on the broader legislative agenda. Bill C-13, the government’s lawful access bill, received royal assent months after the Spencer decision, with no significant amendments or reforms incorporated into the bill in response to the decision. In fact, the shocking attack on Parliament Hill in the fall of 2014, in which a single gunman killed a Canadian soldier and then penetrated deep into the Parliament buildings, only stiffened government resolve for increased surveillance and police powers. By January 2015, the government moved swiftly to introduce Bill C-51, the anti-terrorism bill, which greatly expands information sharing between
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