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An undated aerial handout photo shows the National Security Agency (NSA) headquarters building in Fort Meade, Maryland. (Reuters)
An undated aerial handout photo shows the National Security Agency (NSA) headquarters building in Fort Meade, Maryland. (Reuters)

CAVOUKIAN, DEIBERT, CLEMENT and DES ROSIERS

Real privacy means oversight Add to ...

A steady stream of revelations from U.S. National Security Agency whistle-blowing continues to trickle out, and Canada’s most secretive intelligence agency made a cameo appearance last week.

Among the documents describing the top-secret “Bullrun” project was a reference to Communications Security Establishment Canada. The documents show that in the NSA’s covert quest to weaken Internet encryption standards, its long-standing Canadian partner played the part of a willing accomplice.

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This rare disclosure offers a glimpse at CSEC’s intimate partnership with one of the world’s most powerful intelligence agencies – and serves as a reminder that Canadians shouldn’t be complacent, or look down at Americans for allowing the NSA so much unsupervised power. CSEC is part of the so-called “Five Eyes” signals intelligence alliance, stretching back to the Second World War, so it’s difficult to believe that the latest revelation is the only one of its kind. What else has CSEC been doing that Canadians should be worried about?

In democratic societies, governments must be accessible and transparent to their citizens. And individuals must be free to make informed choices about what personal details to reveal about their lives. Governments are permitted to access personal information only when authorized by law. When it comes to the state’s power to conduct surveillance, critical privacy protections must include independent oversight.

While there is much criticism of the U.S. Foreign Intelligence Surveillance Court, at least it has oversight of NSA activities. There is no equivalent in Canada. CSEC’s operations rely on ministerial approval, with little transparency or accountability. Canadians know startlingly little about what our government is doing – and, potentially, what foreign intelligence agencies are doing – with their personal information. It is disturbing that there’s been so little debate on this important issue, even in Parliament.

CSEC’s only meaningful accountability rests on a single annual review undertaken by a single individual – woefully inadequate. In his report this summer, CSEC Commissioner Robert Décary, a retired judge, issued a rare public critique, acknowledging that he’d been unable to reach a definitive conclusion about the agency’s compliance or non-compliance with the law for various foreign signals intelligence activities. Some activities, he said, “may have been directed at Canadians, contrary to the law.”

CSEC, and the government, must account for what’s taken place. Canadians rightly deserve answers on the scope of domestic spying powers. How much will we allow in the name of security and public safety? There is no question that some measures are necessary to counter terrorism, but must they always be at the exclusion of privacy? We say no.

There can be little doubt that surveillance is a global issue, with personal information being shared across jurisdictions, sometimes in a manner that contravenes the most basic principles of privacy and freedom. We must engage citizens so that the message of “respect our privacy, respect our freedoms,” can be heard, loud and clear. In a free and open society, we deserve no less.

Ann Cavoukian is Ontario’s information and privacy commissioner. Ron Deibert is director of the Canada Centre for Global Security Studies and Andrew Clement is a professor in the faculty of information at the University of Toronto. Nathalie Des Rosiers is dean of the law faculty, common law section, at the University of Ottawa.

The authors will be holding a symposium on International Privacy Day, Jan. 28, 2014, to explore a more open dialogue with Canadian security and intelligence organizations and the public.

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