An International Look on Why Canada Shouldn’t Consider Surveillance Legislation

The Canadian government made signals that it wants to reintroduce the modernization of investigation techniques which brought forth the infamous “lawful access” provision. Is this a good idea when one looks at what has happened internationally?

A few days ago, Michael Geist highlighted news that the Canadian government was planning on introducing new surveillance legislation. The infamous lawful access would allow police to monitor online chat including e-mail and private conversations — a provision that rumours suggest would be repeated under the latest push for total e-surveillance — without a warrant. Later on that day, a report suggested that the bill wouldn’t actually be imminent.

In a time when the Canadian police have been under the gun (no pun intended) over fatal taser misuse, increasing the power of what the police can do, especially without court oversight, doesn’t seem like a real vote-winner for any governing party. Of course, this is by far not the only reason to be concerned over such legislation.

We’ve followed the privacy debate closely in part because of the possibility of the privacy debate and the copyright debate intersecting. In a number of instances, not only have the privacy debate and the copyright debate intersected, but also the file-sharing debate and the privacy debate. In this respect, Canada does have a pretty good vantage point when it comes to forecasting what would be expected in the privacy debate since the issues similar to that of lawful access (since the introduction of the Paul Martin governments surveillance legislation) has been brought up in a number of other countries. So, what happened in the other countries that Canada can learn from?

United States

First, one can easily look at the only country that shares a land border with Canada, the United States. In the United States, controversy erupted over the Department of Justice’s warrantless wiretapping program with AT&T. The news exploded ever since whistle blower Mark Klein submitted evidence to the Electronic Frontier Foundation that showed that there was a splitter in the main network that copied and stored traffic for investigation by the Department of Justice. It took a lawsuit to legally release information from those documents. When the courts started to look like they were going to rule against AT&T, the Bush administration intervened — introducing and passing the “Protect America Act” which gave the telecom giants legal immunity. It raised serious constitutional concerns and the legal implications of the warrantless wiretapping is still being felt today. Even in the country where the push for the so-called war on terror originated, there were serious questions being raised over violations of privacy with respect to the warrantless wiretapping program — some of which are still in the hands of the US court system.

Australia

Australians have found themselves debating whether or not it’s even a good idea to filter the internet. Never mind a police officer actively choosing to whether or not spy on a particular internet user, all Australians would find themselves subject to some form of picking and choosing what a user can view. Essentially speaking, one can view this as all users are potential criminals the second they even get an internet connection in the first place. The debate is best characterized as whether or not it is a good idea to filter out “inappropriate content”. The push for internet filters went so far as to try and filter file-sharing, but a studies have suggested that filtering file-sharing isn’t technologically feasible. If one were to suggest that it got as far as a few pointed opinions, they would be mistaken because of the large demonstrations to fight legislation that would filter the internet. Even Australian Internet Service Providers have rejected the moves to internet filtering. One of the arguments to come out of this particular debate was that it’s up to the government to not only protect it’s citizens, but to protect their citizens from future governments. Even if one were to trust the Australian government to only go after the “bad” content, what’s to stop future governments from filtering out political speech?

Britain

If there is any non-Asian first world countries that have developed a reputation for mass surveillance, it would be Britain. While it’s quite visible to see the pervasive CCTV camera system, there is also the Interception Modernization movement late last year which has been quite unpopular. This is combined with the hugely unpopular data retention policy (EPIC) (Specifically for the UK, the Anti-terrorism, Crime and Security Act 2001)

A lot of the steam for the surveillance movement lost a lot of steam once Her Majesty’s Royal Commission lost the identities of 25 million people (Nearly half the population of Britain)

The British government also took the step to start a blacklist of websites and logging anyone who tried accessing the page in question. The controversy over such a measure hit new heights when British censors blocked Wikipedia

The move to put all this data on a centralized database, unsurprisingly after all of this, isn’t exactly making people celebrate on the streets either — and we haven’t even begun to describe the Phorm fiasco

Sweden

Ever since privacy issues in many other major countries became international news, the FRA/Lex Orwell legislation in Sweden ended up being drowned out on the international headlines. Still, the Swedish law story probably provided an excellent view on what happens when a government passes mass surveillance legislation from rumour to it ultimately passing the legislation. We reported on the initial stages of the legislation when it first became public knowledge that the legislation was coming. The law almost instantly became controversial because even though the law would spy on all traffic merely going in and out of the country, the way the internet is wired in Sweden, even a Swedish resident looking at a Swedish website would most likely have their traffic routed out of the country and back into the country again. Effectively, everyone in the country was being watched. Like many other places when the government pushes for mass surveillance, the movement to stop it was taken online in protest of the law; the website being stoppaFRAlagen (English version of the website). The administrators of ThePirateBay also joined calls to stop the Lex Orwell legislation.

The legislation, as we’ve said, ultimately passed, but not without an amount of drama. The legislation needed the support of the governing party, but if 4 people defected from the ranks to vote against it, the legislation would have been stopped. Only two managed to vote against it and one of the two that was thinking of voting against it, but voting for it was found crying on the steps of parliament. The moment inspired a picture known as “They Stood Up for Your Rights” with two Mps pictures lined up next to two empty picture frames.

Germany

Ground zero for the movement known as the “Freedom, Not Fear” campaign. The protests started in major cities across Germany aimed mainly at the data retention policy. The data retention policy would force ISPs to log all the movements of all internet users for a long period of time (a time that has since been changed around a number of times to several years at one point). The protests were largely successful and moved into an international movement (not just a Europe-wide movement) against general overbroadening of surveillance powers — much like what Canada is facing now.

India

India has typically been a quiet country when it comes to digital civil rights, but when surveillance legislation known as the were raised by Indian citizens. As the Wikipedia entry notes, many citizens of India, startlingly, had to find out about the law through Slashdot, rather than local media.

Overall

If there is anything all 6 examples have in common, is that the moves towards total internet surveillance sparked civil unrest — 5 of which were quite large. Canada currently has a minority government which means that if the opposition parties vote against any possible surveillance legislation, the law would be voted down. The Canadian government also has a precarious position of potentially falling at virtually any time, thus sparking an election. In any event, trying to push through legislation that would broaden surveillance powers won’t win very many votes. If you want to win over public approval, surveillance laws is one of the last things you’d want to touch. The surveillance legislation that Canada pushed for previously died on the order paper. Canada did launch a public consultation on the issue, and the response was widely negative towards the broadening of surveillance powers. Also, generally speaking, Canadians do treat their privacy rights seriously and they have stood up for these rights in the past. Even though technically speaking, the Charter of Rights and Freedoms doesn’t directly reference privacy, many Canadians feel that they have the right to privacy. In any event, even thinking about new online surveillance laws that intercepts e-mails and telephone conversations is a really bad idea just based on what happened in other countries — let alone the conflicts with civil liberties and public opinion on the matter. If the government plans on expanding surveillance powers, there better be court oversight as well as other safeguards to protect Canadian citizens or else they’ll quite likely be greeted with protesters who will be more than happy to vote them out.