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New Mass Surveillance Laws Come to Canada, France, and the United Kingdom, as the NSA May Have Its Wings Clipped

Canada’s Anti-Terrorism Act and France’s Projet de loi relatif au renseignement were approved by their respective parliaments last week.

by Justin Ling
May 12 2015, 2:55pm

Photo via Flickr Creative Commons

Canada's Anti-Terrorism Act is just one step away from becoming law, with its controversial information-sharing and secret police powers still intact. France's cyber-snooping bill is facing broad political support. And the United Kingdom's nanny state law has been in effect for months, despite protestations of a coalition of anti-spying activists.

Amid heightened fears of terror attacks — and carnage on the streets from those carried out — the three countries are leading a push in the western world to knock down the walls that once constrained the powers of police services, immigration cops, state hackers, and intelligence agencies. Australia, China, Germany, and the European Union have considered similar laws.

Meanwhile, a fight is brewing over the United States' Patriot Act, the euphemistically-named granddaddy of modern surveillance legislation, which is fast approaching a critical juncture that could see reform or an end to key aspects.

Canada

Following the pair of attacks in Ontario and Quebec last October that killed two Canadian servicemen, the Conservative government of Prime Minister Stephen Harper began work-shopping new anti-terror legislation.

They've spent years trying to tinker with the Canadian surveillance regime — one doomed attempt would have made it significantly easier for law enforcement to access Canadians' systems and metadata without a warrant.

That legislation — which was supposed to tackle revenge porn — contained provisions making it easier for police and spy agencies to obtain Canadians' GPS coordinates, call records, and metadata without a warrant or any formal paper trail.

The courts eventually declared that unconstitutional.

But when politicians got back from their summer break last year, the Harper government began drafting new laws, dramatically expanding the power of the country's main spy agency, the Canadian Security Intelligence Service (CSIS).

Their first crack at it was legislation giving CSIS permission to operate abroad for the first time in their history, and ignore countries' local laws in the process. CSIS had, for years, been operating overseas on a wink-and-a-nudge basis — running sort-of court supervised international surveillance from within Canada with the help of the country's signals intelligence agency, or working from military bases in Afghanistan. The court tasked with issuing national security warrants eventually said that the extent of CSIS' foreign missions went beyond its mandate and rapped CSIS on the knuckles. So the Harper government simply introduced legislation authorizing their foreign operations.

At the same time, Ottawa introduced measures that gave itself the power to strip Canadians of their citizenship if they've been convicted of treason, espionage, terrorism, or if they've belonged to an armed group at war with Canada. Other changes make it easier for the government to revoke the passports of radicalized Canadians.

But the big changes came with C-51, also known as Canada's Anti-Terrorism Act. That bill was drawn-up after the October 22 attack on Parliament Hill that saw politicians from all parties, including the prime minister, locked down in conference rooms as a radicalized gunman swapped gunfire with security guards and police.

Two huge changes are coming about because of the bill — government departments will suddenly gain the authority to share just about any piece of data with Canada's spy agencies if they think it could have something to do with a threat to national security, and CSIS will be given powers to 'disrupt' threats, even if it means breaking the law, or ignoring citizens' constitutional rights.

The end result is a system where spies — including the National Security Agency's (NSA) Canadian little brother, the Communications Security Establishment (CSE) — have no oversight, little-understood powers, and a massively expanded mandate.

That led Edward Snowden to call Canada's surveillance regime the least supervised in the western world. Many of the documents unearthed by him began to scratch the surface of the amount of bulk data collection by CSE in recent years.

Harper has punched back at the idea that CSE is doing mass surveillance at all. He told a crowd of Wall Street types in New York City last fall that "I'm not a big believer in those kinds of systems, not just because they have a potential to infringe on civil liberty but usually [they] overwhelm you with data in a way that you can't actually process."

Harper said he was a bigger fan of collecting information that focuses on a few specific suspects.

Public Safety Minister Steven Blaney has maintained that C-51 only allows the government to share information if it relates to an "activity that could undermine the security of Canada."

When Blaney sat down with VICE to discuss some of the criticisms of the bill, he said there was simply "nothing new under the sun."

Related: Who's Afraid of the Surveillance State

Europe

The United Kingdom and France are grappling with their their own expansive — and considerably popular — anti-terrorism regimes.

The UK's new laws, which came into force in February, were harshly criticized for trying to tap civilian snoopers to keep an eye on potentially radicalized students and youth — a power that the country's Muslim and Arab communities say smacks of racism and racial profiling.

But while much of UK Prime Minister David Cameron's legislation aims at tackling terror travelers and radicalization, bulk data collection is another cornerstone.

The Counter-Terrorism and Security Act 2015 would force telecommunications companies to retain more data linking users with their devices, and could pave the way for future metadata scraping.

That's just the first step. What's to come has privacy experts more worried.

Following the virtual decimation of the Liberal Democrats — who previously opposed more expansive surveillance measures — in last week's election, there are fears that the so-called Snooper's Charter, which would expand spying powers even further, is about to be re-introduced. Those provisions, which were removed from the original law, would force companies to collect and pass on a customer's browsing data and much more.

France's legislation, which passed the lower house but still needs to be approved by the Senate, would offer the country's spies broad power to tap phones, monitor emails, and task internet companies to sift through users' data, all without a warrant.

In France, the site of January's Charlie Hebdo attack and the deadly siege at a Paris kosher grocery store, broad support between its two major parties has led the bill to speed closer to being adopted without change. Opponents, including the quasi-governmental Digital Council, have raised serious issue with the proposals.

"The Council is preoccupied by the introduction of these new investigation techniques, as certain could lead to a type of mass surveillance. It's the case, for example, that an automated device could be used by service providers and which can be used to relay, in real time, 'suspicious' behavior on their networks," the Council wrote in a submission.

"This approach has shown itself to be extremely inefficient in the United States, despite astronomical investments," said Tristan Nitot, who sits on the Council.

Related: UK Mass Surveillance is Facing a Ruling From Europe's Human Rights Court

America

After nearly 15 years, the sunset provisions in the Patriot Act might finally take effect, peeling away the most controversial aspects of the mass spying bill.

President Barack Obama wants to see the provisions in the bill that authorized the bulk collection of phone data expire. Republican Senate leader Mitch McConnell wants to extend the whole bill to 2020. It's unclear how a vote will actually shake out.

Rand Paul, who is running to lead the GOP into the next election, supports removing the mass spying provisions, and may even filibuster any effort to renew the bill.

Meanwhile, a New York court has ruled that the NSA never had the legal authority to run its mass collection program, interpreting the language of the Patriot Act much more narrowly than the previous Obama and Bush administrations.

The news doesn't mean that the NSA is entirely hobbled, however.

Christopher Parsons, postdoctoral fellow at the University of Toronto's Citizen Lab, said that while neutering the Patriot Act might impede how Americans' data gets scooped up, nobody should expect these changes will do much to kneecap the NSA's mass spying regime.

"I think they can do it anyway," Parsons told VICE News, pointing to Executive Order 12333 — the directive issued by Ronald Reagan that first permitted the NSA to spy on foreign soil.

"In an era of cloud computing, there is a strong argument to be made that even after that section of the Patriot Act goes away, where and when Americans' data flows across international boundaries, it can be collected anyway," he said.

And while the NSA's ability to collect data within the United States might be "slightly diminished," other American agencies with mandates to surveil domestic threats could simply take over.

Parsons says the emerging relationship between Washington and its Five Eyes partners - Canada, the United Kingdom, Australia and New Zealand — is evolving into something much more advanced.

"All the various signals intelligence agencies have become increasingly sophisticated in, not just their ability to collect data, but also their ability to share data with one another," Parsons said.

Reams of Snowden documents have exposed the integral role the UK and Canada have played in creating information awareness alongside the NSA — both Canada and the United Kingdom have tapped fiber optic cables to mass-monitor online activity, while Ottawa also helped set up "listening posts" worldwide in cooperation with the NSA.

It's still entirely unclear what this ebb and flow of bulk data collection will mean, but you can bet that it's not good news for your privacy rights.

Follow Justin Ling on Twitter: @justin_ling

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