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Canada's Spies Are Out of Control

News broke recently that CSEC, Canada's NSA, was testing out a spying program on thousands of travellers in a major Canadian airport in 2012. Now the British Columbia Civil Liberties Association and digital rights group OpenMedia are suing CSEC for...

by Christopher Malmo
Feb 11 2014, 7:57pm

Clever bureaucrats. Who knew?

There was an alarming lack of sustained outrage when it was revealed that CSEC, Canada's NSA, was testing out a spying program on thousands of innocent Canadian air travellers. In response to this revelation, the Harper government insisted it's legal to collect metadata on law-abiding citizens, in part because metadata isn't actually very revealing. Why collect it then? Because it's very useful at giving CSEC total information awareness to catch the terrori--okay, metadata is very revealing. Oops! But don't worry, because everything is within the law.

The laws in question stem from our collective, hasty over-reaction to 9/11. If you no longer think terrorism is an existential threat to Canada, CSEC's authorization to collect very revealing data should concern you. At this moment, our spies are operating with so much power, and so little oversight, that if the government of the day determines it doesn't like what you're saying, you could find yourself under the figurative eye of Sauron. The potential for abuse is scary enough to have prompted an October 2013 lawsuit that will probably go all the way to the Supreme Court.

I spoke with Micheal Vonn, policy director at the BC Civil Liberties Association (BCCLA), whose group partnered with digital rights group OpenMedia to launch the lawsuit. The suit directly challenges the legality of CSEC's ability to collect a variety of data on Canadians. Under secret ministerial authorizations, CSEC is allowed to collect the content of Canadians' communications with foreigners, as well as metadata about Canadians at home. One obvious problem with this is that the global nature of the Internet makes distinguishing foreign and domestic communiques very murky. The BCCLA contends that all this interception and collection goes against the Charter freedoms from unreasonable search and seizure and the Charter freedom of speech and expression.

But surely there's oversight to prevent violations of charter rights? Vonn told me that contrary to the government's claims, "CSEC oversight is so woefully inadequate that it's the worst out of the so-called advanced democracies." Here's how it works: the minister of defense appoints one person to be CSEC commissioner. This person, with a few staff and a tiny budget, has to keep track of a $350 million agency built on secrecy. The commissioner gets to review redacted reports of CSEC activities, sometimes years after the fact. If you have a complaint, you can mail the commissioner a letter at P.O. box 1984. (Who said bureaucrats have no sense of humour?)

That's it. Unlike the US, Canada doesn't even have a secret court like FISA where the agency has to go before getting a rubber stamp to trample on some civil liberties. Essentially, CSEC is operating with so little oversight as to be self-regulating. Are they doing a good job of it? Let's consider CSEC's misleading statements over the past few months about who exactly they're spying on.

In December 2013, CSEC chief John Forster claimed that CSEC was not targeting Canadians or persons in Canada. The latest revelations about free airport wifi tracking have put that claim to rest. In their Clinton-esque response to that story, CSEC put out a release that basically admitted collecting the data, called it lawful, and changed the definition of "tracking" to one that defies common sense. As reporter Ryan Gallagher put it, "Again and again, officials have used narrowly defined words or jargon terms in a carefully crafted way in order to issue non-denial denials in which they appear to refute an allegation but on closer reading do not really refute it at all."

According to Micheal Vonn, past CSEC commissioners have called for parliament to review terms like "collect, track, and foreign" to ask for clarity. This hasn't happened. Given that CSEC keeps changing the meaning of these words in successive statements, it's probably time for the current commissioner to repeat that call.

If this sounds familiar, it's because we've heard it before with the NSA. It turned out that quite a bit of what the NSA was doing was actually against the law. First, the NSA denied collecting information on Americans. When that was proven false, the NSA denied willfully collecting the information. When that was proven false, the NSA fessed up, but said the programs were all legal (based on totally reassuring secret court rulings). This is the stage we've reached in Canada.

CSEC is trotting out all the same lukewarm talking points and half-truths that the NSA served up to congress 6 months ago. Vonn predicts that if we follow the bouncing ball, it stands to reason that revelations about much broader-reaching surveillance programs have yet to come. For example, a close analysis of the airport-wifi documents revealed that CSEC was getting data from a "Special source," a.k.a. corporate partner, just like the NSA with its backdoors into AT&T. This raises questions about just how complicit Canada's telecom companies are in handing over our data.

Still no word on what, exactly, a "porn spy" is.

As this story continues to develop, certain pronouncements carry extra weight; one particular comment made in CSEC's defence really stood out to embody why this whole issue matters. Prime Minister Harper's stooge parliamentary secretary Paul Calandra went on the attack against journalist Glenn Greenwald, calling him a "porn spy" who has only been releasing Snowden documents to "[line] his Brazilian bank account."

That a member of the government of Canada would resort to such a nonsensical ad hominem attack on a reporter is disgraceful and improper. Moreover, it proves exactly why we should be so worried about widespread surveillance on innocent people. The smear of "porn spy" on Mr Greenwald, has nothing to do with any argument over CSEC's activities, and everything to do with undermining Greenwald in the public eye.

Calandra's comment demonstrates a few things: the government takes an interest in your sexuality and it has no qualms about using dug-up dirt, jingoism, and other distractions to try to discredit you when you oppose its policies. If you ever plan to criticize government, I hope you've been behind seven proxies this whole time.

Civil liberties groups have argued that CSEC's secret powers and laughable oversight make it ripe for abuse, and Vonn says that Calandra's attack means the proof is now in the pudding. Even if you think you have nothing to hide, you really don't know what the government will go after you for. Looking at recent stories about the Five Eyes' interest in people's porn viewing habits, GCHQ "dirty tricks" campaigns to discredit enemies of the state, and Calandra's ridiculous slur, it's hard not to see a pattern emerging with chilling implications for free speech in Canada.

Just how much information could CSEC dig up about the average person? Digital law expert Prof. Michael Geist wrote: "CSEC's surveillance activities of Internet communications in Canada are far more extensive than previously realized. Its trove of metadata ... provides enormous insight into the communications habits and activities of millions of Canadians...yet the full scope of activities remain largely secret.

Given those capabilities, assurances that metadata surveillance is less invasive than tracking the content of telephone calls or Internet usage ring hollow.

Improved oversight will help, but it won't solve these issues. The substantive law itself needs open debate and reform."

Canadians have shown a long-standing trust in their government to generally act in their interest. This has led to a bunch of good Canadian things, like medicare and old age security pensions. But as Vonn told me, even if we all believe in a strong national security apparatus, very few of us would choose for it to operate with no public knowledge, minimal oversight, and no accountability. Until Snowden blew his novelty-size whistle, 99% of Canadians didn't even know that this was our situation.

For the sake of an informed electorate, let's hope that the rights groups' lawsuit against the federal government marks the beginning of a much larger debate and a lot more information about what's going on at CSEC. In response to disclosure after disclosure in the news, we've effectively been told to shut up and trust the government—secret organizations will secretly obey secret laws to protect us from the bad guys and the foreigners. And the foreign journalists, and the hacktivists, and the music pirates. And you.

If it sounds far-fetched that innocent people would be swept up by metadata and bad things could happen to them, you should probably know that hundreds of innocent people have already been drone-bombed simply for being in proximity to a SIM card on an NSA-sanctioned kill list, while the agency indiscriminately sucks up data everywhere those same drones fly using specialized sensors.

Clearly, the accountability of the Five Eyes surveillance system is inadequate, and its all-consuming spy-powers have spun out of control. With leaked information from Snowden's encrypted briefcase being published at an increasingly alarming rate, hopefully actions like BCCLA's lawsuit will help wake up Canadians to the reality that there are several serious issues, pertaining to our individual liberties, that require immediate action.

Chris Malmo is a donor relations coordinator at OpenMedia.

@chrismalmo