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

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

EDITED BY Michael Geist
Copyright Date: 2015
Pages: 350
  • Book Info
    Law, Privacy and Surveillance in Canada in the Post-Snowden Era
    Book Description:

    Years of surveillance-related leaks from US whistleblower Edward Snowden have fuelled an international debate on privacy, spying, and Internet surveillance. Much of the focus has centered on the role of the US National Security Agency, yet there is an important Canadian side to the story. The Communications Security Establishment, the Canadian counterpart to the NSA, has played an active role in surveillance activities both at home and abroad, raising a host of challenging legal and policy questions.

    With contributions by leading experts in the field,Law, Privacy and Surveillance in Canada in the Post-Snowden Erais the right book at the right time: From the effectiveness of accountability and oversight programs to the legal issues raised by metadata collection to the privacy challenges surrounding new technologies, this book explores current issues torn from the headlines with a uniquely Canadian perspective.

    eISBN: 978-0-7766-2183-8
    Subjects: Law, Technology

Table of Contents

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  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Acknowledgements
    (pp. vii-viii)
  4. Introduction
    (pp. 1-10)

    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 communications at the very time that billions of people have come to rely on the Internet as their primary tool for communication, social connection, and...

  5. Part I: Understanding Surveillance

    • CHAPTER I Canadian Internet “Boomerang” Traffic and Mass NSA Surveillance: Responding to Privacy and Network Sovereignty Challenges
      (pp. 13-44)
      Andrew Clement and Jonathan A. Obar

      The 2013 revelations of US National Security Agency (NSA) surveillance programs that whistle-blower Edward Snowden’s release of hitherto secret internal documents brought to public attention have sparked a storm of controversy.² Their breathtaking scope, scale, and questionable legality have led many countries to urgently assess the risks of NSA surveillance and to consider various actions to better protect the privacy of their citizens as well as their national sovereignty.

      Given the large proportion of international Internet communications routed through the United States³ where foreigners’ data receives scant legal protection, a major focus of controversy is the NSA’s mass (near total)...

    • CHAPTER II Forgotten Surveillance: Covert Human Intelligence Sources in Canada in a Post-9/11 World
      (pp. 45-68)
      Steve Hewitt

      Surveillance does not affect everyone equally. Since Edward Snowden made his initial flight to Hong Kong with a treasure trove of documents digitally stuffed in his computer, stories about the surveillance reach of the modern technological state have abounded and continue to appear on a regular basis. Some accounts focus on generalized surveillance on a global scale; others are of particular interest to certain nations, as in the case of Canada and the Communications Security Establishment (CSE) trial, which involved the interception of Wi-Fi transmissions at a Canadian airport, or, in the United Kingdom, the warrantless interception of the communications...

  6. Part II: Legal Issues

    • CHAPTER III Foreign Intelligence in an Inter-Networked World: Time for a Re-Evaluation
      (pp. 71-102)
      Tamir Israel

      The recent and dramatic expansion of foreign intelligence surveillance activities, revealed definitively in a trove of documents made public by former NSA analyst Edward Snowden, can be traced to a few drivers. First and foremost, technical changes have made an immense amount of data practically accessible and analyzable in ways that have no precedent in human history. Most of our activities have migrated to digital networks, raising distinct implications in the foreign intelligence gathering context. Digital networks do not route in direct lines.¹ Moreover, most digital interactions are intermediated through one or more entities, often based in foreign jurisdictions. Cloud-based...

    • CHAPTER IV Lawful Illegality: What Snowden Has taught Us about the Legal Infrastructure of the Surveillance State
      (pp. 103-126)
      Lisa M. Austin

      The Snowden revelations have revealed to us, with impressive documentation, the technical infrastructure of contemporary state surveillance. What is less obvious, but of great importance, is the revelation of the legal infrastructure of this surveillance. In this chapter I argue that this infrastructure is best understood as one of “lawful illegality.”

      One aspect of the lawful illegality of surveillance is the conflicting reactions of citizens and authorities when surveillance programs are revealed. Members of the public, upon learning what some national security authority is doing, protest that it must be illegal. The national security authority, and government, claim that everything...

    • CHAPTER V Law, Logarithms, and Liberties: Legal Issues Arising from CSE’s Metadata Collection Initiatives
      (pp. 127-160)
      Craig Forcese

      The year 2013 was the year of the spy. Edward Snowden — “leaker” or “whistle-blower” depending on one’s perspective — ignited a mainstream (and social) media frenzy in mid-2013 by sharing details of classified US National Security Agency (NSA) surveillance programs with the UKGuardianandWashington Postnewspapers.¹

      For related reasons, 2013 was also the year in which the term metadata migrated from the lexicon of the technologically literate into the parlance of everyday commentary. The NSA, it would appear, collects and archives metadata on millions of Internet and telecommunication users.² This information has been compared to “data on data” — that...

  7. Part III: Reforms and Accountability

    • CHAPTER VI Permanent Accountability Gaps and Partial Remedies
      (pp. 163-204)
      Kent Roach

      Accountability gaps occur when those who review or oversee national security activities do not have the necessary legal powers or resources to keep pace with the enhanced and integrated nature of those activities. Both the Arar Commission in 2006 and the Air India Commission in 2010 sounded alarm bells that neither review or oversight was keeping up with whole-of-government-approaches to security. The Arar Commission,¹ in what was, until the early 2015 debates about Bill C-51,² a neglected six-hundred-page second report, recommended that review be extended to other security agencies and that the reviewers be able, like the security agencies themselves,...

    • CHAPTER VII The Failure of Official Accountability and the Rise of Guerrilla Accountability
      (pp. 205-224)
      Reg Whitaker

      When Edward Snowden fled his job as National Security Agency (NSA) contractor to exile in Russia, bringing with him millions of pages of secret documents that soon began appearing in media outlets around the world, the effect was that of a serially detonating bombshell.¹ There has been a great deal of debate about the mean ing and significance of Snowden’s revelations.² Much debate has turned on an apparent binary opposition between accountability and whistle-blowing.

      Some would, of course, deny the very validity of the term “whistle-blower,” calling Snowden simply a traitor deserving dire punishment, but this obfuscates the crucial distinction...

    • CHAPTER VIII Why Watching the Watchers Isn’t Enough: Canadian Surveillance Law in the Post-Snowden Era
      (pp. 225-256)
      Michael Geist

      Months of surveillance-related leaks from US whistle-blower Edward Snowden have fuelled an international debate over privacy, spying, and Internet surveillance. The leaks have painted a picture of ubiquitous surveillance that captures “all the signals all the time,” sweeping up billions of phone calls, texts, e-mails, and Internet activity with dragnet-style efficiency.

      In the United States, the issue has emerged as a political concern, leading to promises from US President Barack Obama to more carefully circumscribe the scope of US surveillance programs.¹ Moreover, US telecom and Internet companies have also responded to political and customer pressure. Verizon² and AT& T,³ two...

    • CHAPTER IX Stuck on the Agenda: Drawing Lessons from the Stagnation of “Lawful Access” Legislation in Canada
      (pp. 257-284)
      Christopher Parsons

      Concerns surrounding government access to communications data are not a new social problematic. Letter mail, the telegraph, phone calls, and other technologically mediated forms of communication have routinely given rise to social privacy concerns.¹ And the politics of such surveillance have often been explosive when new technologies have been made subject to government interception requirements, and even more explosive when it is found that government has surreptitiously engaged in the surveillance of its citizens without publicly declared legal authorities. At this point, proposed legislative expansions of government agencies’ surveillance capacities in Western democracies often fall under the heading of “lawful...

  8. About the Contributors
    (pp. 285-288)
  9. Back Matter
    (pp. 289-289)