In her special report on cyber-snooping and surveillance in Canada, Interim Privacy Commissioner Chantal Bernier took on a fast-developing issue. Revelations from documents released by Edward Snowden have raised questions about spying activities by government agencies across the world, including here in Canada.
What Ms. Bernier sees in Canada is essentially a patchwork of rules and oversight, much of it outdated, at a time when the explosion of online information has changed the way spies and police work – and what information they can gather, with or without a warrant.
Her recommendations included boosting watchdog powers, compelling Canada’s spy agencies to release more information and rewriting privacy laws, including the Privacy Act, which she notes has been essentially unchanged since before the Internet era.
Her recommendations aren’t simply aimed at parliamentarians or spy agencies such as the Communications Security Establishment (CSE) Canada and Canadian Security Intelligence Service (CSIS), she said.
“We are looking more broadly. Yes, of course, CSE and CSIS, but there are other agencies in government that are part of the collection of personal information,” she said, adding it remains unclear what information is being collected and how it’s used.
“We don’t know, that’s the whole point. We don’t know and we want to know. Canadians want to know and deserve to know.”
While her report drew crickets in Ottawa – where ministers Rob Nicholson and Steven Blaney steered clear of it, leaving no indication of whether government may actually enact any of the changes – others welcomed it.
Here is some of the responses to the report:
Ray Boisvert, a security consultant with I-Sec Integrated Strategies and retired assistant director of intelligence at CSIS. Ms. Bernier consulted him in preparing her report.
“I like the idea the Privacy Commissioner has acted proactively on the issue, because of Snowden revelations and so many other things. People are concerned. They have some serious questions. So I think it’s very helpful to look at this from a privacy perspective,” he said, adding he supports 90 per cent of the recommendations, but has concerns about blocking police from accessing publicly available things online, including social media accounts. “What I’m always worried about is over-regulation and jamming up organizations,” he said.
Christopher Parsons, a postdoctoral fellow at the Munk School of Global Affairs’ Citizen Lab, who studies state access to telecommunications data. Some of the recommendations in the report are similar to those made before – including a call for broader powers and more robust laws to allow watchdogs to do their job.
“Many of these suggestions the privacy commissioner has put forward are indicative of that office not being able to play its role. It doesn’t have the required powers to understand what’s going on in order to a) make things right or b) blow the whistle,” he said, later adding: “Should Canadians be concerned? Yeah. What the Commissioner’s office is saying is we do a good job, we do the best we can within our mandate, but our mandate is to narrow.”
Martin Rudner, professor emeritus and founding director of the Canadian Centre of Intelligence and Security Studies at Ottawa’s Carleton University. He was also among those Ms. Bernier consulted in preparing the report.
The recommendations “would go a long way toward upgrading operational oversight and enhancing transparency over intelligence/surveillance activities that are necessarily secretive. This, in turn, would serve to foster greater public confidence in the accountability mechanisms for Canada’s Security and Intelligence community,” he wrote in an e-mail, adding that broader disclosure of information would support academic research as well.
Sukanya Pillay, Acting Executive Director, Canadian Civil Liberties Association, which Ms. Bernier consulted in preparing the report. She welcomed the call for greater disclosure.
“National security can’t be invoked as some sort of talisman that permits the state to avoid any kind of accountability with respect to what they’re doing. We need to know what they’re doing and we need to know if what they’re doing is effective. We don’t need to know the content and the specifics, but we need to know the reach and what processes are in place,” she said.
CSE spokesperson Lauri Sullivan provided the lone government response to the report (in an e-mail with “Classification: UNCLASSIFIED” stamped at the top)
She said the agency would “review” the recommendations and is already disclosing more information. “Protecting the privacy of Canadians is the law and CSE follows the letter and the spirit of that law. We have rigorous policies and procedures in place to ensure we follow the law and protect the privacy of Canadians. Under the law, CSE’s foreign intelligence mandate specifically dictates that our activities be directed at foreign entities, and not at Canadians or anyone in Canada,” she said, adding the activities are reviewed by an independent commissioner.
Wayne Easter, Liberal Public Safety Critic “We certainly welcome the report, I think there’s some good recommendations in it. I think the government should move toward implementation.... when it comes to openness and transparency, this government is usually going in the wrong direction,” he said.
Jack Harris, NDP National Defence critic “We’re being told by the [Defence] minister they follow the law [at CSE]. The question is whether the law is adequate, and what Canadians really want is to have some confidence their privacy is being protected, and that there will also be some parliamentary oversight to make sure these agencies don’t get out of hand.”