The Supreme Court of Canada last week declared that access to telecom subscribers’ personal information requires a court warrant.
This week, despite a warning from Canada’s privacy commissioner, the Harper government is moving ahead with legislation that greatly expands warrantless access to subscriber data.
It’s a move that e-commerce law expert Michael Geist describes as a “head in the sand approach.”
The Senate on Monday passed Bill S-4, known as the Digital Privacy Act, Geist reported on his blog. The bill, which has yet to pass the House of Commons, is meant to enhance privacy online, but privacy experts say it could end up doing the opposite.
S-4 is being sold as “protection for Canadians when they surf the web and shop online,” and critics have lauded certain parts of the bill, such as those that would give the privacy commissioner greater powers and establish new penalties for privacy breaches.
But critics say corporations would gain access to the private data of telecommunications users. The law would allow internet service providers to share subscriber information with any organization that is investigating a possible breach of contract, such as a copyright violation, or illegal activity. Telecoms would be allowed to keep the sharing of data secret from the affected customers.
The bill could also remove court oversight of copyright lawsuits against Canadian consumers, potentially setting up the sort of “copyright trolling” seen in the U.S., in which music and movie rights holders often demand tens or hundreds of thousands of dollars from individual downloaders.
Experts such as Geist and Canada’s privacy commissioner say the Supreme Court’s decision means Bill S-4, as well as some other privacy-related legislation, need to be rewritten.
“We would encourage Parliamentarians to carefully consider the implications of this ruling as they deliberate on Bill C-13 [the anti-cyberbullying bill] as well as Bill S-4, the Digital Privacy Act,” the office of the privacy commissioner said in a statement.
The Supreme Court ruled last week that police need a search warrant if they want Internet providers to reveal a subscriber’s identity. The court argued Canadians have a “reasonable expectation” of privacy when they surf the internet.
That’s not the view of government officials, who argue basic subscriber data is public. A Justice Department official testifying before a parliamentary committee likened taking subscriber data from telecom to a police officer jotting down the licence plate number of a suspected drunk driver.
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According to documents given to Privacy Commissioner Chantal Bernier, the federal government asks telecom for data on subscribers 1.2 million times a year. That’s one request for every 30 Canadians, every year. Most of those requests don’t involve a warrant, and in 2011 telecoms complied with at least 784,000 of those requests.
The federal government spent more than $50 million buying high-security communications technology from the U.S. National Security Agency, according to data unearthed by Vice magazine. There have been at least 73 contracts for telecommunications equipment procured through the NSA over the past decade.
According to documents given to NDP MP Charmaine Borg under an access to information request, some telecoms are building databases of customer information specifically for police use. A Competition Bureau document noted the bureau had "accessed the Bell Canada Law Enforcement Database" 20 times in 2012-2013.
At least one Canadian telecom is evidently giving the government unrestricted access to communications on its network, according to documents from Canada’s privacy commissioner. The unnamed telecom says the government has the ability to copy the traffic on its communications network, then mine the copied data to determine what sort it is.
Critics say Bill C-13, the “anti-cyberbullying bill” the Harper government is promoting, is essentially a back-door for a host of measures that would allow greater government intrusion into private lives. The bill would provide legal immunity to telecoms that hand over customer data without a warrant, and would lower the standard under which police can get warrantless data. Digital rights group OpenMedia says the bill “would let ... authorities create detailed profiles of Canadians based on who they talk to and what they say and do online.” Pictured: Justice Minister Peter MacKay
Industry Minister James Moore's Digital Privacy Act is being billed as “protection for Canadians when they surf the web and shop online,” but critics say it amounts to a wholesale threat to the privacy rights it ostensibly aims to enshrine. Bill S-4 would allow internet service providers to share customer data with any organization that is investigating a possible breach of contract, such as a copyright violation, or illegal activity. Thus, private corporations, and not just the government, could obtain personal information about you. The bill would also eliminate court oversight of file-sharing lawsuits, which critics fear would lead to the sort of “copyright trolling” seen in the U.S.
An estimated 90 per cent of Canadian Internet traffic moves through the U.S., which means that Canadians are being caught up in the NSA’s surveillance dragnet, experts say. Data passes through “filters and checkpoints” and is “shared with third parties, with law enforcement and of course intelligence agencies that operate in the shadows,” says Ronald Deibert, head of the University of Toronto’s Citizen Lab.
Documents obtained by the Globe and Mail and The Canadian Press suggest that Canada is engaged in mass warrantless surveillance. The documents show then-Defence Minister Peter MacKay signed a ministerial directive in November, 2011, authorizing the re-start of “a secret electronic eavesdropping program that scours global telephone records and Internet data trails – including those of Canadians – for patterns of suspicious activity.”
Canada’s electronic spy agency, CSEC, will see its budget skyrocket to $829 million in 2014-15, from $444 million this year. Pictured: CSEC's new $1.2-billion headquarters in Ottawa, currently under construction.
According to journalist Glenn Greenwald’s book “No Place To Hide,” Canada took some $300,000 to $400,000 from the NSA in 2012 to develop surveillance capabilities. However, that money amounts to a drop in the bucket given CSEC’s $829 million budget for electronic surveillance. Pictured: Glenn Greenwald
The CSEC was in charge of developing an international standard for encryption keys to transmit data securely. But according to documents obtained by the New York Times, CSEC handed over control of the standard to the NSA, allowing the U.S. surveillance agency to build back-doors that allowed it to crack the encryptions. As a result, the NSA was able to crack data transmissions that internet users thought were secure.
The Harper government allowed the U.S. to carry out widespread surveillance in Canada during the G20 meeting in Toronto in 2010, according to documents leaked by NSA whistleblower Edward Snowden. Few details of the espionage were released, but it appears this is a sort of rotating circle of spying: Canada helped the U.S. and U.K. spy on the 2009 G20 conference in London.
If various reports and leaks of government documents are to be believed, the Supreme Court’s ruling could have widespread implications for how law enforcement and telecoms share private information.
A recent transparency report from Rogers Communications revealed the government had asked the company for subscriber data 175,000 times last year, with about 100,000 of those requests being warrantless.
With such frequent requests (requests for Rogers subscriber data work out to about 480 per day), it’s possible or even likely that the handover of data between telecom and law enforcement is automated in some way.
There is evidence that some telecoms are giving automated access to law enforcement to their subscriber databases. In documents provided to NDP Charmaine Borg, the Competition Bureau referred to accessing the “Bell Canada Law Enforcement Database.”
Such practices could be found unconstitutional, given the Supreme Court's ruling last week.
"The government's decision to rush the legislation through the Senate (it conducted only a few hours of hearings) and to seemingly ignore the Supreme Court's decision creates further uncertainty for Canadians and Canadian businesses," Geist wrote.The country needs rules that comply with the Supreme Court decision, and “S-4 fails to do so,” he added.