Law, Privacy and Surveillance in Canada in the Post-Snowden Era

292 Pages·2015·3.529 MB·English

by  Michael Geist

Law, Privacy
and Surveillance
in Canada in the
Post-Snowden Era
Edited by Michael Geist
University of Ottawa Press
LAW, PRIVACY
AND SURVEILLANCE IN CANADA
IN THE POST-SNOWDEN ERA
Law, Privacy and Surveillance in Canada in the Post-Snowden Era.indd 1 15-05-19 14:18
Page left blank intentionally
15-05-19 14:18
Law, Privacy and Surveillance in Canada in the Post-Snowden Era.indd 2
LAW, PRIVACY
AND SURVEILLANCE IN CANADA
IN THE POST-SNOWDEN ERA
EditEd by
Michael Geist
University of Ottawa Press
2015
Law, Privacy and Surveillance in Canada in the Post-Snowden Era.indd 3 15-05-19 14:18
The University of Ottawa Press gratefully acknowledges the support extended to
its publishing list by Canadian Heritage through the Canada Book Fund, by the
Canada Council for the Arts, by the Federation for the Humanities and Social Sciences
through the Awards to Scholarly Publications Program and by the University of
Ottawa.
Copy editing: Joanne Muzak
Proofreading: Susan James
Typesetting: Édiscript enr.
Cover design: Llama Communications and Édiscript enr.
Library and Archives Canada Cataloguing in Publication
Law, privacy, and surveillance in Canada in the post-Snowden era
/ edited by Michael Geist.
(Law, technology and media)
Includes bibliographical references.
Issued in print and electronic formats.
ISBN 978-0-7766-2207-1 (paperback).
ISBN 978-0-7766-2183-8 (pdf).
ISBN 978-0-7766-2182-1 (epub)
1.Electronic surveillance — Law and legislation — Canada. 2. Privacy, Right
of — Canada. 3. Technology and law — Canada. I. Geist, Michael, 1968-, author, editor
II.Series: Law, technology and media
KE9328.L34 2015 345.71’052 C2015-903727-1
KF9670.L34 2015 C2015-903728-X
© Michael Geist, 2015 under Creative Commons License Attribution  — Non
Commercial Share Alike 3.0
(CC BY-NC-SA 3.0)
Printed in Canada
Law, Privacy and Surveillance in Canada in the Post-Snowden Era.indd 4 15-05-19 14:18
table of Contents
Acknowledgements ........................................................................... vii
Introduction ........................................................................................ 1
Part I: Understanding Surveillance
I Canadian Internet “Boomerang” Traffic and Mass NSA
Surveillance: Responding to Privacy and Network
Sovereignty Challenges
Andrew Clement and Jonathan A. Obar .................................... 13
II Forgotten Surveillance: Covert Human Intelligence
Sources in Canada in a Post-9/11 World
Steve Hewitt ............................................................................... 45
Part II: Legal Issues
III Foreign Intelligence in an Inter-Networked World:
Time for a Re-Evaluation
Tamir Israel ................................................................................ 71
IV Lawful Illegality: What Snowden Has Taught Us
about the Legal Infrastructure of the Surveillance State
Lisa M. Austin ........................................................................... 103
V Law, Logarithms, and Liberties: Legal Issues Arising
from CSE’s Metadata Collection Initiatives
Craig Forcese .............................................................................. 127
Part III: Reforms and Accountability
VI Permanent Accountability Gaps and Partial Remedies
Kent Roach ................................................................................. 163
VII The Failure of Official Accountability and the Rise
of Guerrilla Accountability
Reg Whitaker ............................................................................. 205
Law, Privacy and Surveillance in Canada in the Post-Snowden Era.indd 5 15-05-19 14:18
VIII Why Watching the Watchers Isn’t Enough: Canadian
Surveillance Law in the Post-Snowden Era
Michael Geist ............................................................................. 225
IX Stuck on the Agenda: Drawing Lessons from
the Stagnation of “Lawful Access” Legislation in Canada
Christopher Parsons ................................................................... 257
About the Contributors ....................................................................285
Law, Privacy and Surveillance in Canada in the Post-Snowden Era.indd 6 15-05-19 14:18
Acknowledgements
Publishing a peer-reviewed book with numerous contributors on
a rapidly evolving, high-profile issue requires a special group of
contributors, publishers, editors, and reviewers. Thanks are due first
and foremost to the contributors. Each was presented with challeng-
ing timelines to complete their submissions and often asked to submit
revised versions based on reviewer comments within days. Each con-
tributor embraced this project with enthusiasm and professionalism.
Many thanks go to Wesley Wark, who contributed enormously
to the vision behind the book and to the recruitment of contributors.
Once the initial articles were delivered, many additional con-
tributors emerged. Thanks to a terrific group of student editors,
including Emily Murray, Jennifer Shamie, Chelsea Sauve, Kavi
Sivasothy, Mila Falkenstein, and Karina Pogosyan, who provided
citation and fact checking reviews.
Thanks also to Elizabeth Schwaiger, who oversaw the produc-
tion of the book from copy-editing through proofreading, layout,
and printing.
Thanks to the University of Ottawa Press, particularly Lara
Mainville and Dominike Thomas, who offered tremendous support
for this book project.
Thanks as well to the Social Sciences and Humanities Research
Council of Canada and the Canada Research Chair program, as this
book benefited from their financial support.
Thanks also to my colleagues and family for their support
throughout this project. It is a great honour to work with such an
exceptional, supportive group of colleagues at the University of Ottawa.
My wife, Allison, remains the foundation of our family and a
remarkable source of love and support. Jordan, Ethan, and Gabrielle
are more than just fantastic children, who make their parents proud
each and every day. They are true digital citizens, engaged with
issues related to surveillance and privacy, as they are part of a gen-
eration that does not know a world without the Internet, nor, it would
appear, without network surveillance.
March 2015
Ottawa, Ontario
vii
Law, Privacy and Surveillance in Canada in the Post-Snowden Era.indd 7 15-05-19 14:18
Page left blank intentionally
15-05-19 14:18
Law, Privacy and Surveillance in Canada in the Post-Snowden Era.indd 8
introduction
Edward Snowden burst into the public consciousness in June 2013
with a series of astonishing revelations about US surveillance
activities. The Snowden leaks, which have continued for more than
eighteen months, have confirmed that fears of all-encompassing
network surveillance and data capture that were envisioned as worst-
case scenarios more than a decade ago have become reality. With
scant debate or public awareness, surveillance agencies around the
world have become remarkably adept at capturing network commu-
nications at the very time that billions of people have come to rely on
the Internet as their primary tool for communication, social connec-
tion, and information gathering. As a result, the “open Internet” is a
far cry from what millions of users might have otherwise expected
or believed, with openness more aptly referencing their openly acces-
sible private communications.
Snowden’s primary focus has been centred on the United States.
However, the steady stream of documents have laid bare the notable
role of allied surveillance agencies, including the Communications
Security Establishment (CSE), Canada’s signals intelligence agency.
The Canadian-related leaks — including disclosures regarding sur-
veillance over millions of Internet downloads, airport wireless net-
works, spying on the Brazilian government, and the facilitation of
spying at the G8 and G20 meetings hosted in Toronto in 2010 — have
Law, Privacy and Surveillance in Canada in the Post-Snowden Era.indd 1 15-05-19 14:18