University of Alberta Privacy & the New Panopticon: Lawful Access and The Race Between Law and Technology in the War on Terror by Owen J. Kirkaldy © A thesis submitted to the Faculty of Graduate Studies and Research in partial fulfillment of the requirements for the degree of Master of Laws Faculty of Law Edmonton, Alberta Fall 2008 Library and Bibliotheque et 1*1 Archives Canada Archives Canada Published Heritage Direction du Branch Patrimoine de I'edition 395 Wellington Street 395, rue Wellington Ottawa ON K1A0N4 Ottawa ON K1A0N4 Canada Canada Your file Votre reference ISBN: 978-0-494-47164-7 Our file Notre reference ISBN: 978-0-494-47164-7 NOTICE: AVIS: The author has granted a non­ L'auteur a accorde une licence non exclusive exclusive license allowing Library permettant a la Bibliotheque et Archives and Archives Canada to reproduce, Canada de reproduire, publier, archiver, publish, archive, preserve, conserve, sauvegarder, conserver, transmettre au public communicate to the public by par telecommunication ou par Plntemet, prefer, telecommunication or on the Internet, distribuer et vendre des theses partout dans loan, distribute and sell theses le monde, a des fins commerciales ou autres, worldwide, for commercial or non­ sur support microforme, papier, electronique commercial purposes, in microform, et/ou autres formats. paper, electronic and/or any other formats. The author retains copyright L'auteur conserve la propriete du droit d'auteur ownership and moral rights in et des droits moraux qui protege cette these. this thesis. Neither the thesis Ni la these ni des extraits substantiels de nor substantial extracts from it celle-ci ne doivent etre imprimes ou autrement may be printed or otherwise reproduits sans son autorisation. reproduced without the author's permission. In compliance with the Canadian Conformement a la loi canadienne Privacy Act some supporting sur la protection de la vie privee, forms may have been removed quelques formulaires secondaires from this thesis. ont ete enleves de cette these. While these forms may be included Bien que ces formulaires in the document page count, aient inclus dans la pagination, their removal does not represent il n'y aura aucun contenu manquant. any loss of content from the thesis. Canada Dedication: This work is dedicated to my wife Jennifer, who met me the day I commenced work on my LL.M. program. She has given me love, support and kindness, and in return I have given her a home-office that looks like a paper mill exploded. This dedication is in thanks for all of the encouragement and support that you have given me since the day we met, four years ago today. Abstract: Surveillance and information gathering technology is rapidly outpacing the ability of courts, legislatures and other policymakers to ensure that an appropriate balance is struck between the protection of individual privacy rights and the application of new technology to policing and information-gathering. This paper examines privacy rights in the context of Canada's response to the challenges of terrorism, particularly the proposals for 'Lawful Access' made by the Department of Justice. The courts ought to articulate particular privacy rights that will be protected as opposed to examination of differing means used to invade privacy. The use of the grounds of 'reasonable suspicion' as a basis for invasion of privacy in all but the most marginal of ways ought to be curtailed. An independent body whose role will be to advise Canadians of otherwise secret invasions of their privacy in the course of electronic surveillance should be established. Table of Contents 1.1 Introduction 1 1.2 Survey of Privacy Law and Legislation in Canada 9 1.3 The Anti-Terrorism Act and how it compares with the reactions to terrorism seen in other jurisdictions 11 1.4 The Current Status of Lawful Access Proposals 15 1.5 BillC-74 18 2.1 The Definition and Relevance of Terrorism in Canada 24 2.2 The War on Terror - Conflict in Context 31 2.3 What can Canada do to deal with terrorism? 38 3.1 The Definition and Relevance of Privacy in Canada 41 3.2 Competing Conceptions of Privacy in the West 46 3.3 Why Privacy? 50 3.4 Section 8 and Constitutional Protections 56 3.5 Our Privacy Rights 72 4.1 The War on Terror, Reasonable Expectation of Privacy 73 4.2 How Important is Counterterrorism in Comparison to Privacy? .... 76 4.3 How does a perceived terrorist threat alter the willingness of a society to abandon liberties and alter a Section 1 analysis 84 5.1 Dataveillance and Canadian Society: Tracking Data, the electronic age, and the Panopticon 93 5.2 Is the Reaction against Dataveillance just Paranoia? 94 5.3 Interception of Electronic Mail and monitoring of Internet traffic .. 96 5.4 Electronic Tracking Data collection 103 5.5 Panopticism 105 5.6 The Value of Public Anonymity 114 6: 6.1 Bill C-74 and Proposed Lawful Access Provisions 125 6.2 Adequacy of complaints-driven monitoring of privacy issues 132 6.3 What controls are necessary for Lawful Access to operate safely and effectively? 137 7: 7.1 Conclusion 142 Bibliography 147 Appendix A 158 Appendix B 159 Appendix C 161 2 1.1 Introduction On September 11,2001, the world, or rather the West, experienced a paradigm shift in geopolitical thought in the truest sense of those words. At a stroke, the conception of the global distribution of power as fundamentally being distributed between a collection of nation states was extinguished, and a new conception of the capacity of non-state actors to influence global politics came into sharp focus. Hundreds of millions of people living a largely secular life were drawn - in a matter of seconds - into a previously remote and obscure religious war that they did not understand. Although sub-national Islamist terrorism had been moving from a localized movement to a global anti-American Jihad since the mid 1990s \ the Millennium was the time that it entered in a serious way into the consciousness of America and the West. As is the case with any truly successful terrorist attack, perception became reality, and overnight the single greatest threat to modern western civilization, in the minds of the public, became Islamist terrorism. Is there truth to the perception? Whether or not there is, what is clear is that the course of history, and the course of legal thought has been changed by these events. Since 2001, many governments have concentrated state and executive power and expanded the scope of permissible limitation of personal freedoms to a greater extent than has been the case in many years. At the same time as our perceptions of what may be an appropriate level of state and executive authority over individual freedom and privacy has changed, the technology which facilitates the invasion of personal privacy has advanced rapidly and proliferated widely. The technical capacity of state authorities to observe individuals is such today that the possibility exists to remotely log and examine virtually 1 Gilles Kepel, The War for Muslim Minds: Islam and the West, (Cambridge: The Belknap Press of the University of Harvard Press) 2004 at 92-94. 1 every aspect of any individual life. The need that government feels to employ more and better surveillance technology is partially in response to the use of technology by criminals and terrorists to coordinate action and planning. When measuring the dangers posed by terrorism and the incursion on civil liberties by government, the public must consider that, New technology is not only useful to, and used by, lawbreakers and terrorists, but law enforcement authorities have also increasingly begun to employ such technology (primarily in the form of surveillance technology) in their investigative and enforcement efforts.2 Any Western government now has the capacity to realize the most ambitious outcomes of any past police state - that of ensuring that each individual is aware that the state could be observing them at any time. A race is being run between the capacity of law enforcement and other state agencies to implement technology to monitor individuals and the capacity of the judiciary to interpret technology in the context of civil liberties. This paper will examine the interplay between privacy and security, and make suggestions for how these elements can be balanced in the future, ultimately by changing the rules of the 'race' to eliminate the interplay between increasing technology and judicial interpretation by replacing a technology based interpretation of privacy rights with a principled protection of aspects of individual privacy. What is needed in order to protect privacy against both public and private sector abuse is privacy law which is based on principle, rather than technology. It is not helpful to have technology-based laws and court decisions which will not give useful guidance once technology changes. It is only by embracing the idea of principle-based privacy protections 2 Mary W.S. Wong, "Electronic Surveillance and Privacy in the United States After September 11,2001: The 2 that we will have effective privacy laws as well as laws which are predictable from one technological platform to the next. The product cycle of modern information technology is much faster than either the capacity of government to legislate or the capacity of the appellate courts to produce decisions, and as a result, courts and legislators need to look past the technology of the day to the idea which underlies the technology. This is especially relevant as it becomes easier and easier to monitor the typical user's electronic communications, and as personal computers become less stand-alone devices and more Internet portals, The rise of always-on broadband has led to a shift towards the use of our personal computers as mere workstations, with private data stored remotely in the hands of third parties.