The question is no longer whether Big Brother is watching us. The question is how many of his sibling state agencies are covertly tuning into our private communications?
News reported by Matthew Braga in the Globe and Mail last week that the RCMP and CSIS are apparently using a covert device to track cellphone users without judicial oversight came and went quietly. Is this a sign that Canadians have become used to living in a post-privacy world? Or that we are so fatigued by continuous revelations about state intrusions that we lack the energy to react?
Whatever the case, the upshot is that we have quietly acceded to a profound change in human communication patterns, one that has reaped the state an informational bonanza. Unless we engage in a national debate — and soon — the end of privacy may be upon us.
Just over 40 years ago Parliament gave us a rigorous wiretap law; elaborate mechanisms that live on as a legacy of an era when personal privacy was a prized civil liberty.
Digital data surveillance, in contrast, is an open plain of unrestrained opportunity for official snoopers. The state has virtually unfettered access to eavesdrop or read every single personal communication with no mechanism for accountability.
This is a jolting reversal from just a decade ago when police complained loudly about their inability to keep up with tech-savvy criminals. Not only did government help them catch up but the tables have turned. The government has failed to rein in police techniques to obtain digital information from third party carriers like cellphone and social media providers. By not recognizing the pressure that state snoops put on these regulated carriers, the government has delivered us into a post-privacy world.
When civil libertarians complain about excessive surveillance and secrecy, state officials point to the scourge of Internet luring and child pornography, the war against terrorism and the need to counteract foreign spying. All of these are undeniably compelling problems. They may even be, as some alarmists warn, pervasive morphing threats to our social order. But fighting them cannot be swapped out for privacy without a real discussion. That debate should take place in Parliament but our elected officials are stuck in a supine position on privacy.
Unbeknownst to many Canadians, the Charter of Rights and Freedoms says there is a right to privacy. Apart from that key guarantee, our most important laws say little else on the subject. Exploiting this gap, law enforcement and national security agencies have pressured third party communication service providers to surrender private information. News that the privacy commissioner is investigating the RCMP’s warrantless collection of personal data is a fractional response to a vast problem.
Though judges have done their best to uphold the rule that searches and seizures should not take place without judicially approved warrants, litigation decisions are closely anchored to the specific facts of the case in question. This makes it relatively easy for motivated snoops to get around them. In the Spencer case released in June, the Supreme Court of Canada told police they needed judicial warrants to get private communications from telecommunication companies. According to media reports, however, police continued to request the same data — without warrants — all summer long. Inevitably, the legal gap that police and security agencies are trying to exploit to get around Spencer will take more years to challenge in the courts.
In another instance of the wild west ethic in digital surveillance, state agencies have refused to say whether they are using covert surveillance devices known as International Mobile Subscriber Identity catchers — instruments that simulate communications towers, allowing authorities to intercept phone calls and text messages. This potential intrusion, too, will have to be pursued through court action.
Worst of all, for every case that works its way up from the trial courts to appellate review, there are hundreds or thousands that linger in legal obscurity for want of the resources or will to wage a years-long battle.
The courts are not a substitute for legislative control of surveillance techniques to restrain overenthusiastic intelligence collectors.
Is there hope for an organized debate about a privacy code with statutory offences for deliberate violations?
Two recent extensive surveys of current or former Members of Parliament — one by a law professor and one by the Samara think-tank — hardly inspire confidence. Both revealed that political leaders feel either impotent to influence privacy policy or overwhelmed by the complexity of the task.
But political leadership is all we have left. Without swift action, the information black hole we are falling into may soon swallow up our privacy rights.
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