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The Canadian Privacy and Civil Liberties Punch in the Gut (or Why CSE/CSIS Oversight is Not Enough)

Michael Geist Law RSS Feed - Tue, 2015/02/03 - 17:09

As a lifelong Seattle Seahawks fan, this past Sunday’s Super Bowl – with the Hawks a yard away from winning their second straight championship only to give up a late interception – felt like a punch in the gut. Nearly two days later, I’m still trying to catch my breath. The end to Super Bowl 49 was the actually second time in the week that I was left feeling shocked and speechless. Throughout the week, the combination of Snowden revelations regarding Canada’s role in the daily tracking the Internet activities of millions and the introduction of Bill C-51, the anti-terrorism legislation, left me similarly grappling to make sense of the swirling developments.

It would appear that the immediate response from many, particularly the opposition parties, has centered on the need for improved accountability and oversight. There is no doubt that the failure to address Canada’s weak oversight system of surveillance and intelligence activities is a major flaw (particularly since oversight was actually reduced in 2012).  For a government that introduced the Federal Accountability Act as its very first piece of legislation (and supported more oversight when in opposition) to now dismiss oversight as “red tape” is simply shameful. Better oversight and accountability should be a proverbial “no-brainer”: it bolsters public confidence and, as demonstrated elsewhere, need not undermine security-related operations.

Yet the problem with oversight and accountability as the primary focus is that it leaves the substantive law (in the case of CSE Internet surveillance) or proposed law (as in the case of C-51) largely unaddressed. If we fail to examine the shortcomings within the current law or within Bill C-51, no amount of accountability, oversight, or review will restore the loss of privacy and civil liberties.

First, consider the Snowden revelations that the CSE has been the lead on a surveillance initiative that gathers as many as 15 million uploads and downloads per day from a wide range of hosting sites that even appear to include the Internet Archive. The goal is reputed to be to target terrorist propaganda and training materials and identify who is uploading or downloading the materials. The leaked information shows how once a downloader is identified, intelligence agencies use other databases (including databases on billions of website cookies) to track the specific individual and their Internet use within hours of identified download.

The Levitation program, which removes any doubt about Canada’s role in global Internet surveillance, highlights how seemingly all Internet activity is now tracked by signals intelligence agencies. Note that the sites that host the downloads do not hand over their usage logs. Rather, intelligence agencies are able to track who visits the sites and what they do from the outside. That confirms a massive surveillance architecture of Internet traffic operating on a global scale. Is improved oversight in Canada alone going to change this dynamic that crosses borders and surveillance agencies?  It is hard to see how it would.

Moreover, these programs point to the fundamental flaw in Canadian law, where Canadians are re-assured that CSE does not – legally cannot – target Canadians. However, mass surveillance of this nature does not distinguish between nationalities. Mass surveillance of a hundred million downloads every week by definition targets Canadians alongside Internet users from every corner of the globe. To argue that Canadians are not specifically targeted when it is obvious that the personal information of Canadians is indistinguishable from everyone else’s data at the time of collection, is to engage in meaningless distinctions that only succeed in demonstrating the weakness of Canadian law.  Better oversight of CSE is needed, but so too is a better law governing CSE activities.

Second, Bill C-51 is a problem not only because it fails to address longstanding shortcomings in oversight and accountability over CSIS. It is a problem because there are substantive provisions that should leave anyone concerned with privacy and civil liberties breathless (Craig Forcese has begun to identify them).

For example, the new CSIS disruption warrants are remarkably broad, providing legal power to effectively ignore any law (domestic or otherwise) and do whatever it deems is needed. It shocks to see the government openly empowering CSIS to break the law with few limitations or restrictions. While this is a warrant (therefore a judge must approve), legally granting the right to ignore the law is enormously problematic. Further, the power applies in far more than just terrorist situations.

In fact, the broad approach extends to other areas as well. The expanded information sharing rules cover:

(a) interference with the capability of the Government of Canada in relation to intelligence, defence, border operations, public safety, the administration of justice, diplomatic or consular relations, or the economic or financial stability of Canada;
(b) changing or unduly influencing a government in Canada by force or unlawful means;
(c) espionage, sabotage or covert foreign-influenced activities;
(d) terrorism;
(e) proliferation of nuclear, chemical, radiological or biological weapons;
(f) interference with critical infrastructure;
(g) interference with the global information infrastructure, as defined in section 273.61 of the National Defence Act;
(h) an activity that causes serious harm to a person or their property because of that person’s association with Canada; and
(i) an activity that takes place in Canada and undermines the security of another state.
For greater certainty, it does not include lawful advocacy, protest, dissent and artistic expression.

Terrorism is enumerated, but “interference with the capability of the Government of Canada” in relation to numerous activities is exceptionally broad. Moreover, the bill speaks to “install, maintain or remove any thing”, pointing to the power to install malware or other computer harms on personal computers or devices. By opening the door to do any other thing, it likely also includes the power to interfere with routine use of encryption, which is increasingly standard for many Canadians.

There are many other provisions that require detailed study, among them the potential takedown of websites or online content if hosted in Canada, expanded promoting terrorism provisions (a scenario released by the government states that posting a Youtube video with the words “Attack Canada” at the end would now constitute a criminal act), and the broad information sharing provisions that the government-appointed Privacy Commissioner of Canada has warned “would seemingly allow departments and agencies to share the personal information of all individuals, including ordinary Canadians who may not be suspected of terrorist activities, for the purpose of detecting and identifying new security threats.”

Law enforcement thankfully already has many powers to target terrorism and terrorist activities in Canada (as arrests in Ottawa on Tuesday demonstrate). The threats are real and we needs laws to address them. However, the radical reform of CSIS – when viewed alongside the mass surveillance programs of CSE – point to the need for a careful, non-partisan review of the substantive rules governing such activities. Viewed in this light, addressing oversight is necessary, but by no means sufficient.

The post The Canadian Privacy and Civil Liberties Punch in the Gut (or Why CSE/CSIS Oversight is Not Enough) appeared first on Michael Geist.

CRTC Rejects Bell Request for Private Meeting On Super Bowl Simsub Decision

Michael Geist Law RSS Feed - Mon, 2015/02/02 - 16:45

The CRTC has rejected a request from Bell for private meetings with some or all of the CRTC Commissioners to discuss the recent simultaneous substitution decision involving the Super Bowl. According to recently obtained correspondence (posted below), Bell wrote privately to the CRTC Commissioners over the weekend to request an opportunity to discuss the ruling with each or all of them. The CRTC responded immediately, noting that the decision was the result of a public process that is still ongoing and that it would be inappropriate for Bell to hold private meetings with the Commissioners to discuss the decision.  The full correspondence is posted below:

De :  Envoyé : Sunday, February 01, 2015 09:09 AM À : Blais, Jean-Pierre; Pentefountas, Tom; Menzies, Peter; Molnar, Candice; Shoan, Raj; Dupras, Yves; Simpson, Stephen Objet : Impacts of Super Bowl Simsub Decision
 
Good morning Commissioners and apologies in advance for communicating on a weekend.
 
As most of you know, I do not often email Commissioners about substantive regulatory issues and I have rarely (if ever) communicated to everyone at the same time to convey concern about a decision.
 
You have undoubtedly heard our perspective on the Super Bowl decision and you also had the benefit of the overwhelming evidence presented at the hearing showing the significant impacts that loss of simsub, even for the Super Bowl, would have on Canadian advertisers, promotional opportunities for Canadian content and on Bell Media’s revenues.  I have attached below two press releases and an article directly relevant to theses issues.
 
While I may often disagree with CRTC rulings, I always respect that the Commission has to take the broader public interest into account.  In this case however, I really do believe the negative impacts to advertisers, Canadian content and Bell Media significantly outweigh the convenience to some viewers of being able to watch American ads within the broadcast itself.
 
I would appreciate any opportunity to further discuss this issue with each or all of you.
 
Best regards,
 
——————–
CRTC Response
 
From: Laizner, Christianne 
Sent: February-02-15 2:00 PM
To: ‘
Subject: Broadcasting Regulatory Policy 2015-25
 
Dear Mr. ,
 
Your correspondence of 1 February 2015 to Commissioners has been forwarded to me for response. In that correspondence, you indicated your disagreement with the Commission’s decision regarding simultaneous substitution and the Super Bowl. You requested meetings with each or all of the Commissioners to discuss your views on this decision.
 
I would note that the decision in question was reached following an extensive public proceeding which examined many options with respect to simultaneous substitution including its complete elimination. The Commission considered all of the evidence and submissions put before it, in that public proceeding. I would further note, as indicated in the Commission’s decision, there will be further public process to implement the Commission’s decision via regulation. As such, the implementation of this decision is still before the Commission. In addition, the Commission has not yet issued its decisions on the many other outstanding issues from the public proceeding.
 
In light of the above, it would be inappropriate for you to hold private meetings with Commissioners either individually or collectively to discuss your views on this decision. It would be unfair to other parties to the public proceeding for Commissioners to hold off the record conversations with one party with a view to altering a decision already taken.
 
Sincerely,
 
Christianne Laizner
Avocate générale principale / Directrice exécutive
Senior General Counsel / Executive Director
Secteur juridique / Legal Sector
Conseil de la radiodiffusion et des télécommunications canadiennes /
Canadian Radio-television and Telecommunications Commission
CRTC, Ottawa, Ontario K1A 0N2

The post CRTC Rejects Bell Request for Private Meeting On Super Bowl Simsub Decision appeared first on Michael Geist.

In Partial Defense of the Seahawks’ Play Calling

Freedom to Tinker - Mon, 2015/02/02 - 09:30
The conventional wisdom about last night’s Super Bowl is that the Seahawks made a game-losing mistake by running a passing play from the Patriots’ one yard line in the closing seconds. Some are calling it the worst Super Bowl play call ever. I disagree. I won’t claim it was the right call, but I do […]

2014’s best science fiction and fantasy


Locus magazine has published its annual recommended

I was delighted and honored to find that my stories "Petard" (from Twelve Tomorrows) and "The Man Who Sold the Moon" (from Hieroglyph) (excerpt) made the cut (both have also been selected for several of this year's Year's Best anthos, for which I am extremely grateful!).

For me, the publication of the Locus List always marks the day when I fill in my Hugo nominations ballot, using it to jostle my memory and figure out which works I want to put forward. If you're interested in my own eligible works, they're the two stories above (best novelette and novella, respectively), "Information Doesn't Want to Be Free" (best related work) and "In Real Life" (with Jen Wang) (best graphic novel).

Here's the sf novels on this year's list:

* Ultima, Stephen Baxter (Gollancz; Roc 2015)
* War Dogs, Greg Bear (Orbit US; Gollancz)
* Shipstar, Gregory Benford & Larry Niven (Tor; Titan 2015)
* Chimpanzee, Darin Bradley (Underland)
* Cibola Burn, James S.A. Corey (Orbit US; Orbit UK)
* The Book of Strange New Things, Michel Faber (Hogarth; Canongate)
* The Peripheral, William Gibson (Putnam; Viking UK)
* Afterparty, Daryl Gregory (Tor; Titan)
* Work Done for Hire, Joe Haldeman (Ace)
* Tigerman, Nick Harkaway (Knopf; Heinemann 2015)
* Europe in Autumn, Dave Hutchinson (Solaris US; Solaris UK)
* Wolves, Simon Ings (Gollancz)
* Ancillary Sword, Ann Leckie (Orbit US; Orbit UK)
* Artemis Awakening, Jane Lindskold (Tor)
* The Three-Body Problem, Cixin Liu (Tor)
* The Causal Angel, Hannu Rajaniemi (Tor; Gollancz)
* The Memory of Sky, Robert Reed (Prime)
* Bête, Adam Roberts (Gollancz)
* Lock In, John Scalzi (Tor; Gollancz)
* The Blood of Angels, Johanna Sinisalo (Peter Owens)
* The Bone Clocks, David Mitchell (Random House; Sceptre)
* Lagoon, Nnedi Okorafor (Hodder; Saga 2015)
* All Those Vanished Engines, Paul Park (Tor)
* Annihilation/Authority/Acceptance, Jeff VanderMeer (FSG Originals; Fourth Estate; HarperCollins Canada)
* Dark Lightning, John Varley (Ace)
* My Real Children, Jo Walton (Tor; Corsair)
* Echopraxia, Peter Watts (Tor; Head of Zeus 2015)
* World of Trouble, Ben H. Winters (Quirk)

2014 Locus Recommended Reading List

Nine awesome Bitcoin projects at Princeton

Freedom to Tinker - Fri, 2015/01/30 - 11:39
As promised, here are the final project presentations from the Bitcoin and cryptocurrency technologies class I taught at Princeton. I encouraged students to build something real, rather than toy class projects, and they delivered. I hope you’ll find these presentations interesting and educational, and that you build on the work presented here (I’ve linked to the projects […]

a $3.5 billion reminder

Fair Duty by Meera Nair - Sun, 2015/01/18 - 19:19

Investor-State Dispute Settlement (ISDS) reappeared in the news last week. Writing for Toronto Star, Les Whittington alerts Canadians that our country is on the receiving end of a claim of $3.5 billion by the owner of the Ambassador Bridge which connects Windsor and Detroit. “Matty Moroun … is claiming damages from Ottawa in connection with Canada’s plan to help build a second bridge linking Ontario to Michigan at Detroit.”

It is the ISDS mechanism established within the North American Free Trade Agreement (NAFTA) that is providing the avenue of complaint for Moroun. I have written about ISDS before (most recently, see here); in essence, foreign corporations have recourse to sue governments, via private tribunal, when government or judicial actions of the home country are deemed to compromise the foreign investment. ISDS was introduced ostensibly to provide security to corporations when dealing in countries with less-than-robust systems of law, but has now become part and parcel of most bi-lateral or multi-lateral trade agreements. The recently agreed upon Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union, and the pending Trans-Pacific Partnership (TPP) which is described as the largest trade agreement negotiated outside of the World Trade Organization, are no exceptions. From a Canadian perspective though, it is perplexing that any government of Canada should embrace the continuance of ISDS in trade agreements.

Whittington draws from a newly–released compilation of actions against NAFTA governments, authored by Scott Sinclair for the Canadian Centre for Policy Alternatives (CCPA), to observe that, disproportionately, Canada receives most of the action. It could be argued that Canadian trade with the United States is of higher volume than that of Mexico, and thus such proportion is inevitable. One could also argue that Canada’s past commitments to public-wellbeing are more likely to impede a laissez-faire mantra, and that is why we attract unwanted attention. A day after Whittington’s article, Thomas Walkom also weighed in via Toronto Star: “… 69 of the 77 complaints made against governments in the three countries were leveled against public policy measures in areas such as environmental protection, land-use planning, drug regulation and health care.”

Whittington observes that the Canadian government sees concerns of ISDS as overdrawn; with respect to CETA, he quotes a representative: “Investment protections have long been a core element of trade policy in Canada and Europe, and will encourage job-creating investment and economic growth on both sides of the Atlantic.” But, in March of last year, Public Citizen issued a report which comprehensively illustrates that ISDS offers protection far beyond what occurred in the past and that “… countries bound by ISDS pacts have not seen significant FDI increases, [whereas] countries without such pacts have not lacked for foreign investment (p.3).” And in that same report, Public Citizen illustrates precisely how deleterious actions under ISDS are to public well-being.

For instance, both Uruguay and Australia have drawn fire for their anti-smoking efforts (larger warning labels and plain packaging requirements), despite the fact that the World Health Organization commends such effort. (Jim Armitage, writing for The Independent last fall, described in detail Uruguay’s success in reducing smoking rates among its population.) Yet tobacco company Phillip Morris, is challenging both countries by way of ISDS. As noted by Public Citizen, “Philip Morris is demanding compensation from the two governments claiming that the public health measures expropriate the corporation’s investments in violation of investor rights established in Bilateral Investment Treaties (p.2).” Neither Uruguay’s health success nor the fact that Australia’s regulations were upheld by its Supreme Court, will have much sway in the tribunal operations of ISDS.

Under ISDS, disputes are managed by a trio of corporate attorneys who rotate among the positions of representative and judge. These tribunals are not answerable to any electorate and do not address public well-being as a court of law would do when confronted with the same dispute. Even if one is willing to accept that such critical decisions are rendered outside the forum of any country’s judiciary, the lack of statutory guidance to the outcome is extraordinary; Public Citizen writes:

If a tribunal rules against a challenged policy, there is no limit to the amount of taxpayer money that the tribunal can order the government to pay the foreign corporation. Such compensation orders are based on what an ISDS tribunal surmises that an investor would have earned in the absence of the public policy it is attacking. The cases cannot be appealed on the merits. There are narrow technical and procedural grounds for annulment. Firms that win an award can collect by seizing a government’s assets if payment is not made promptly. Even when governments win cases, they are often ordered to pay for a share of the tribunal’s costs. Given that the costs just for defending a challenged policy in an ISDS case total $8 million on average, the mere filing of a case can create a chilling effect on government policymaking, even if the government expects to win (p.2-3).

For Canadians, that last sentence is not conjecture; Walkom writes “[In 2013] … the Ontario government paid a U.S.-based company $15 million to withdraw its complaint.” Moreover, the phrase “would have earned in the absence of the public policy it is attacking” should send chills down everyone’s spine. Clean air, clean water, access to medicine, and, worker and public safety, all sit on the cost side of any ledger. It is unrealistic to expect that measures addressing these social needs would have been voluntarily adopted by entire industries, and then maintained by those industries, without some prodding from government. The appropriate forum to address dispute between corporate expectation and government commitment to public well-being, can only be a court of law.

Harold Innis (1894-1952) once remarked upon the brilliant achievement that was the development of law; that law represented “an alternative to force.” True, in the 21st century, citizens of nation states do not fear marauding armies traipsing through the streets in a hostile takeover of the nation. But we should not lose sight of the fact that nations can be taken over in a far more insidious way; losing the supremacy of our judiciary and the autonomy of our government should be an early warning sign.


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