Electronic spying: Surveillance can only be acceptable with a warrant from a judge

Some dismiss concerns about security surveillance, saying that no one but spies and terrorists need worry if their phone calls and emails are monitored by government agencies.

One response to this view came recently from U.S. President Obama. “Our system of government is built on the premise that our liberty cannot depend on the good intentions of those in power,” he said. Canadians historically are more trusting of government than Americans, but Obama’s opinion no doubt applies to Canada as well in a post-Snowden world.

If the National Security Agency (NSA) in Washington would tap German Chancellor Angela Merkel’s phone for years, as it did, little appears beyond the attempted grasp of security agencies today. The otherwise beneficial security sharing and co-operation agreement among Canada, United States, Britain, Australia and France also promotes overlapping bad practices.

Recent revelations are not reassuring. One was the approval by the commissioner of our Communications Security Establishment (CSE) of monitoring smartphones using the free WiFi at Ottawa's airport.

Another occurred last autumn when the participation of technology companies in the NSA’s surveillance programs prompted the digital rights watchdog, the Electronic Frontier Foundation, to quit the Global Network Initiative, a group whose members include Microsoft, Yahoo and Facebook and the stated mission of which is to advance privacy and freedom of expression online.

Further afield, the New York Times reported last week that the Australian Signals Directorate conducted surveillance of communications between Indonesian officials and an American law firm hired by Indonesians for trade disputes with the U.S. This sent waves through the legal profession internationally as it grapples with the reality of government eavesdropping and its effects on privileged communications.

The few publicly-known practices of Canada’s security agencies, the Canadian Security and Intelligence Service (CSIS), the Security Intelligence Review Committee (SIRC), and the CSE are also troubling.

Ann Cavourian, Ontario’s privacy commissioner, recently noted that agencies in the U.S. are at least required to obtain consent for surveillance operations from a court, whereas the CSE simply asks our Minister of Defence for permission. Two congressional committees oversee the NSA, she adds, but only a semi-retired judge as commissioner and small staff do so for the CSE. The report of the CSE commissioner is sent to Parliament after it is reviewed by the same minister who approved its activities. This is inadequate by any standard of independent oversight.

Only following Edward Snowden’s revelations about the vast range of NSA data collection did the CSE commissioner reveal that it intercepts, retains and uses the private communications of a ‘small’ number of Canadians.

Reviewing the legislation governing the CSE and CSIS to ensure that it covers what is actually going on in today’s cyber world is now clearly necessary. Prohibiting interception of the content of ‘private communications’ is legislatively sound for any open society, but, as we now know, surveillance agencies are capturing what’s known as ‘metadata’. This does not reveal the specifics of conversations, but still has enormous privacy implications, which is why surveillance agencies gather it.

The silence of our various agencies to date on this legislative gap speaks volumes on the need for independent analysis and recommendations to ensure our laws are adequate to deal with today’s cyber capabilities so that security and privacy are appropriately balanced and protected.

The view of the much-respected former Auditor General Sheila Fraser in 2009 seems indisputable today: “for Canadians to have confidence in their security and intelligence organizations, they need to know that government agencies and departments maintain a balance between protecting the privacy of citizens and ensuring national security.”

This probably means that telephone and Internet data about Canadians should not be available to governments unless a judge is first satisfied that a significant security risk will probably occur if specified data is not obtained and orders its electronic capture. This is similar to search warrants, which are granted by judges only if they are convinced that there are reasonable and probable reasons that a crime has or will be committed.

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On the basis of methodology derived from the Universal Declaration of Human Rights, a Freedom House report recently voiced major concern about the tracking of democracy advocates by authoritarian government monitoring of social media and cell phones.

“Central to modern authoritarians is the capture of institutions that undergird political pluralism. They seek to dominate not only the executive and legislative branches, but also the media, judiciary, civil society, economy, and security forces,” says the report.

Many of us in the roughly 40 per cent of the world’s population living in countries Freedom House judges ‘free’ are also concerned about monitoring of private telephone and internet communications by agencies of governments, which claim to practise the rule of law.

If Pierre Trudeau’s most remembered quotation is that the “state has no business in the bedrooms of the nation,” many of us would today say that the update should be, “The state has no business in the cellphone and internet communications of its citizens without first obtaining a search warrant from a judge.”

Who can disagree?

David Kilgour is co-chair of the Canadian Friends of a Democratic Iran, a director of the Helsinki-based First Step Forum and the New York-based NGO Advancing Human Rights. He is a former MP for both the Conservative and Liberal Parties in the southeast district of Edmonton and has served as the Secretary of State for Latin America and Africa, Secretary of State for Asia-Pacific, Deputy Speaker of the House and chair of committees of the whole House.