Government spying read more

C-51, v 2.0

Justin Trudeau promised to overhaul his predecessor's controversial surveillance legislation. Critics are concerned he’s not looking to limit the spying law — he’s looking to expand it

Canada is planning an overhaul of its national security legislation. Here’s what you need to know

When Justin Trudeau hit the campaign trail more than a year ago, he vowed that he would peel back “problematic elements” of the governing Conservative Party’s anti-terrorism legislation. Now, a year later, little progress has been made. But big changes are coming early in 2017, and civil liberties advocates are growing worried about what the government is planning.

The Liberals pledged to introduce an all-party oversight committee, review all appeals by Canadians on the no-fly list, narrow overly broad definitions, and to put more judicial oversight on Canada’s main spy agency.

But before any big changes were to come into force, the government first launched online consultations about Canada’s entire national security framework. Those consultations wrapped last week, and changes are expected to be brought in by Public Safety Minister Ralph Goodale early in the new year.

Many privacy and civil liberties advocates and researchers have expressed concern that the consultations appear heavily slanted towards giving Canadian police and spies more — not less — power to surveil Canadians online. The B.C. Civil Liberties Association said that the paper “reads like it was drafted by a public relations firm tasked with selling the current state of extraordinary, unaccountable powers.”

The website that hosted the consultation, as well as all of the background documents, have been pulled from the government website and are unavailable.


Threat reduction

Under C-51, the Canadian Security Intelligence Service (CSIS) won the ability to “disrupt” threats, and to collect and share more information from within government.

“Such authority is completely unique and is found nowhere else in Canadian legislation and for good reason: it is very likely unconstitutional.”

The law grants CSIS — which had previously been limited to just collecting intelligence — the new power to “take measures, within or outside of Canada” to reduce threats. Those measures, however, aren’t spelled out and they, generally, don’t require a warrant. But the law does specifically say that, if CSIS wants to “contravene a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms,” it can do so — as long as a judge signs off. The law says they must be “reasonable and proportional,” but it’s up to CSIS to determine what that means.

Trudeau has specifically promised to remove the language, to ensure that all CSIS activities comply with the Charter.

In March, CSIS Director Michael Coulombe told a Senate committee that his agency had used its threat reduction powers “approximately two dozen times” since last fall.

What the government says:

The Green Paper justifies the new powers by explaining how threats against Canada have evolved in recent years — the shift towards small-scale attacks, increased use of the internet and mobile communications, and easier travel. Because CSIS and the RCMP often have different priorities and information, “it was felt that there were situations where CSIS was best placed to take timely action to reduce threats,” the paper says.

In asking for public input, the green paper asks: “Are the safeguards around CSIS’s threat reduction powers sufficient to ensure that CSIS uses them responsibly and effectively? If current safeguards are not sufficient, what additional safeguards are needed?”

What the experts say:

These powers have been some of the most controversial aspects of C-51.

Civil liberties groups have worried about what exactly “reasonable and proportional” could entail, and contend that it is ultimately up to CSIS to determine whether their activities contravene the Charter — and therefore whether or not they need to apply for a warrant.

University of Calgary law professor Michael Nesbitt, who testified about C-51 at committee, argued that the idea of “additional safeguards” might be misleading altogether.

“No other body in Canada can obtain prior authorization to breach the Charter, let alone any section of the Charter. Such authority is completely unique and is found nowhere else in Canadian legislation and for good reason: it is very likely unconstitutional,” he wrote in a paper about the consultations.


Encryption

The debate over encryption in national security circles is decades-long, but it became top-of-mind again during a battle between the FBI and Apple, in the aftermath of the mass shooting in San Bernardino last year, when the American agency filed a court order to get Apple’s help in cracking the suspects’ iPhone. Apple refused, saying they didn’t have that power.

“In what circumstances, if any, should investigators have the ability to compel individuals or companies to assist with decryption?”

Ultimately, the FBI was able to get the phone unlocked by a third party, without Apple’s help.

There is currently no law in Canada that allows police to force an individual or a corporation to decrypt their communications.

As VICE News reported in November, the RCMP was looking to change that by pushing a “new public narrative” on encryption, among other issues, ahead of the national security consultations. The revelations came to light after Canada’s federal police worked with the CBC and the Toronto Star in a five-part series about how encryption is thwarting their policing efforts.

What the government says:

The green paper does note that encryption can be used to protect privacy and enhance security, but also laments that “encryption technology also helps criminals and terrorists to avoid discovery, investigation and prosecution.”

The paper asks: “If the Government were to consider options to address the challenges encryption poses in law enforcement and national security investigations, in what circumstances, if any, should investigators have the ability to compel individuals or companies to assist with decryption?”

What experts say:

Civil liberties and privacy advocates say the government’s lines on encryption are misleading.

Ann Cavoukian, Executive Director of the Privacy and Big Data Institute at Ryerson University and former Information and Privacy Commissioner for the province of Ontario, wrote in the Globe & Mail that “we must stand against any government measure that would compromise or weaken encryption.

“We stand to gain far more from strengthening encryption than we do by curtailing it. Repressive regulations introducing backdoors would only serve to hamper the implementation of strong security controls that are absolutely essential in the digital world.”

Forced decryption also raises the possibility of them incriminating themselves, a protection every person has the right to under the Charter.


Warrantless access

In recent months, the RCMP and local police forces have contended that they ought to have warrantless access to “basic subscriber information” — which can include names, addresses, phone numbers, email addresses, IP addresses, and mobile devices’ unique identifiers, and possibly more — and that telecommunications providers should have to retain that sort of information for prolonged periods of time, in case the government should want it.

The problem is that the Supreme Court has already declared that kind of warrantless access as unconstitutional. In a 2014 case, the top court ruled that cops couldn’t simply request someone’s personal information from their cellphone or internet provider without a court order, except in emergency situations.

What the government says:

The green paper contends that, since the Supreme Court decisions, law enforcement have had to seek out warrants that can be “slow and involve considerable work and resources.”

The paper seems to imply the government is bringing back that warrantless access, but does not say so explicitly. It contends that “a tool designed to access [basic subscriber information] specifically could, with appropriate safeguards, both enhance investigative capabilities and respect privacy interests.”

What experts say:

The University of Toronto’s Citizen Lab has pushed back against the idea that basic subscriber is merely a name and phone number, contending instead that the information can be highly revealing, in terms of not only biographical details, but even a person’s physical location. The Supreme Court, in its landmark decision, agreed.

Many have said that, should police have the ability to obtain Canadians’ information without a warrant, it will be unconstitutional.

Therrien, the privacy commissioner, also argues that requiring companies to keep Canadians’ data for longer periods of time would only increase the likelihood and damage of a data breach or a hack.


Information sharing

The Security of Canada Information Sharing Act, enacted as part of Bill C-51, allows for federal agencies to collect and share information with other federal agencies when it’s related to “activities that undermine the security of Canada.”

The only exemption for that standard is “advocacy, protest, dissent, and artistic expression.”

Canadian agencies sharing intelligence with their Five Eyes partners has led to serious human rights violations in the past, in cases where the information has landed in the hands of regimes that use torture. At least four men were detained and tortured in Syria thanks to faulty Canadian intelligence, including Maher Arar, who was awarded a $10.5 million settlement from the Canadian government. The three other men are still suing Ottawa.

What the government says:

The green paper lays out a variety of ways in which information-sharing could be further limited domestically and, in turn, internationally. The paper asks Canadians whether the law should include more limitations on how information-sharing happens, whether there needs to be additional oversight, and whether it’s appropriate that non-security agencies — like Health Canada and the Canadian Food Inspection Agency — should be able to share information on Canadians with CSIS.

What experts say:

The B.C. Civil Liberties Association has argued that the exemption for protest, advocacy, and artistic expression is totally inadequate.

The creation of the ‘advocacy exemption’ is a largely symbolic and not a substantive protection of rights,” the association says.

The privacy commissioner called the scope of the powers allowed by SCISA “excessive,” especially in how they affect ordinary Canadians. The Commissioner said the government has never actually explained how previous law was deficient in allowing information to be shared for national security purposes.

Laws brought in by the previous government may have actually expanded the ability for intelligence obtained via torture to be used in Canadian courts, according to University of Victoria law professor Donald Galloway.


Terrorism speech offenses

“The new speech crime will lead to an almost limitless guessing game.”

Bill C-51 introduced the new criminal offence of advocating or promoting “terrorism offenses in general,” In the Criminal Code, a terrorism offence includes anything from violence and destruction of property to providing financial and material support to recruitment.

What the government says:

While counselling terrorism has long been an offense, the government argues that prior to C-51, the scope of the offence of counselling was unclear.

“There was some uncertainty about whether it constituted counselling if a person actively encouraged committing terrorism offences but was not specific about the offences or the type of offences (for example, whether terrorist bombing or terrorist financing),” the green paper said.

The new law, the paper explained, “extends the concept of counselling to cases where no specific terrorism offence is being counselled, but where it is evident nonetheless that terrorism offences are being counselled.”

What experts say:

Civil liberties advocates have been calling on this part of the bill to be repealed, saying there’s no point of widening the limits speech that can be criminalized. It’s already illegal to encourage anyone to commit terrorism offences, many of which aren’t violent. “Terrorism offences in general,” which is never defined in the Criminal Code, is “exceptionally broad in scope and is too vague to be a definable category of speech,” says the Canadian Civil Liberties Association, adding that there are no defences against the provision’s overreach.

“The new speech crime will lead to an almost limitless guessing game by individuals and courts as to whether an individual’s speech is promoting terrorist offences ‘in general,’ which will compel some individuals to limit their speech on controversial issues,” the association argues, adding that it could also drive controversial speech underground, putting a “chill efforts to engage radical elements in our communities and community efforts to de-radicalize extremist views.”


Oversight

A big part of the Trudeau government’s plans to protect Canadians privacy came by way of their national security oversight committee.

“This notion that the minister and these agencies can withhold information from this committee ought to be rejected.”

That is one thing they have moved on, through bill C-22, which would create a parliamentary oversight committee for national security agencies, and will allow Members of Parliament to receive security clearance to analyze the information.

Under the law, ministers would have the power to override the committee’s plans to look into a case if it were deemed harmful to national security. And while redacted versions of the committee’s reports will be made public, the prime minister has authority to edit, change, or refuse to publish those reports.

What the government says:

The green paper mentions the Parliamentary committee, but makes no mention of the limitations that Members of Parliament on the committee will face.

The paper does also set out proposals on how the existing intelligence review bodies can further cooperate.

What experts say:

While the privacy commissioner welcomes the government’s plans to create the oversight committee, he writes that Canada is currently lacking expert review is critical — including for agencies like the Canada Border Services Agency, which currently has no real oversight at all.

And, most of all, advocates have blasted the idea that the government can pick-and-choose what information the Parliamentary committee gets to see.

“In my view, this notion that the minister and these agencies can withhold information from this committee ought to be rejected,” said Anil Kapoor, a lawyer who advises the court in national security cases, told a Parliamentary committee studying the bill.


You can read the government’s green paper backgrounder here.

The B.C. Civil Liberties Association’s series, titled A different shade of green paper: What the government forgot to mention, can be found here.

The Canadian Civil Liberties Associations series, called Tackling the Government Green Paper on National Security, can be found here.

Cover: Photo by Fred Chartrand/The Canadian Press

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