The Narwhal | News on Climate Change, Environmental Issues in Canada

Internet Privacy in Canada: Is it Possible or Are We Already “Out of Control”?

Elizabeth Hand — Tue, 18 Jun 2013 19:51:48 +0000

As technology advances, so do government surveillance opportunities. And as these opportunities arise, what’s to stop them from being used against us?

In April of this year, the Human Rights Council at the UN presented a report on the urgent need for laws that regulate Internet surveillance practices to protect human rights standards. As the months go by, that need is becoming more and more apparent. As allegations of spying fly with the exposure of programs like PRISM and the Trans-Pacific Partnership, it seems that Canadians may have real cause for concern when it comes to individual privacy.

In spite of the Internet’s unprecedented ability to allow for freedom of expression and opinion, an enormous risk lies in the collection of information stored in what seems a limitless digital memory. What a person says online may be innocent enough, but given the right spin or put in the wrong context, one's private sentiments could be used to serve unintended means. Which is perhaps why private correspondences should be just that—private.

In a recent interview for the Guardian, Edward Snowden, the former NSA contractor, pointed out that, even if you’ve got nothing to hide, “you are being watched and recorded… you don’t have to have done anything wrong, you simply have to arrive under suspicion by anybody, even by a wrong call, and then they can use the system to go back in time to scrutinize every decision you’ve ever made.” The full meaning of 'privacy' has begun to shift since the advent of the Internet where email and the proliferation of social media accounts gather personal information in a way previously unimaginable. The UN report points out that things have changed drastically since the last time privacy laws were given consideration. A review of the legal landscape may be in order considering that in the last twenty years, countries like the US, where wiretapping “was viewed as such a serious threat to privacy that its use had to be restricted to detecting and prosecuting the most serious crimes,” are now streamlining more State-sponsored surveillance. While no one questions a State’s authority to investigate criminal activity, the report highlights the need for policy to protect the privacy rights of individuals. It reminds us that to express any opinion – through any medium – is a basic human right under articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. The writing implies that expressions of opinion should not be used to build a case against an individual. But that is exactly what could happen if individuals are unknowingly monitored and their private information is stored. Governments seem largely unconcerned with the attention Internet privacy has received in recent weeks. The outcry in America about the monitoring of Verison customers inspired little reaction in the Obama administration, with President Obama simply stating: “You can’t have 100% security and also have 100% privacy.” He did assure, however, that specific American individuals were not being targeted for surveillance. Canadians, on the other hand, have no such assurance. Despite being “foreign citizens,” which according to Ronald Deibert, director of Toronto’s Citizens Lab, means “we’re fair game when it comes to eavesdropping.” He warns that Canadians shouldn’t rely on citizenship in cyberspace.

“Canadians should know that they live in a borderless environment when it comes to North America.”

DeSmog recently interviewed Canadian internet privacy expert, Richard S. Rosenberg, emeritus professor of Computer Science at UBC, board member of the BC Civil Liberties Association, President of the Freedom of Information and Privacy Association of British Columbia and author of several editions of the book, The Social Impact of Computers.

Rosenberg is not at all surprised at the reach of the government’s ability to collect information. He is, however, pleased that the issue is gaining some public momentum.

Rosenberg has been publishing on the subject of privacy and technology since 1983. He says that in the past, we weren’t dealing with such a large-scale problem. Companies have had access to personal information for quite a long time, and for the most part, that hasn’t been a problem.

“Companies probably want to be responsible with your information,” he said. The thing that has changed drastically in recent years is that the collection and storage of information has become cheap and easy. What has changed “is the scope."

"All of a sudden the government is looking at vast amounts of information and this is all possible because of computers. The scope of the privacy issue is directly related to the technology.” He says that the main problem is in the mindset about these kinds of advancements. “It's based on this old notion of technology, which is: if you can do it, do it.” The question surrounding the intersection of government and technology, he says, is one of ability. The government is concerned with what it can do, rather than what it should do. Things that were illegal before, like wiretapping and unwarranted surveillance, are common police practices now. These things are easier to do than they used to be and they are sold to us as necessary security.

But, Rosenberg argues that individuals who endeavour to commit acts of terrorism will work around known surveillances. “9/11 changed things a lot. You have these people who were doing a lot of planning over the Internet. If the Internet had been monitored in some fashion, could it have been anticipated? That’s not clear at all. The [Boston Marathon Bombing] just happened and that wasn’t anticipated.”

There are few limitations to Internet surveillance in Canada. The introduction of the Lawful Access Legislation bill, says Rosenberg, is a point in case. When the bill was originally introduced the Canadian public wouldn’t hear of it: it was a blatant intrusion on civil rights.

But proponents of the bill – like Public Safety Minister Vic Toews – suggested those who opposed the legislation, “supported child pornographers."

"The argument was," says Rosenberg, "if they had to wait to get a warrant, a child pornography offender could take down their site and start a new one before [the police] could legally investigate them. This is the kind of argument that allowed them to put our civil liberties on hold.” Despite gaining a temporary foothold, the bill was eventually thrown out.

So are we on a runaway train? Rosenberg thinks we might be. The only way to reverse the problem, he says, is through transparency.
“We are almost out of control [of the collection of information]. The problem is, we expect government to be responsible. What we need to do is, we need to know what type of information is being collected. What that information is being used for should be apparent and that it’s secure. The government claims the right to do what they want [with our information]. How did they get this right? Did they ask? The government would say: no this is just what we’ve always been doing. We just do it better now. We do it faster. We get more information. We can answer questions more quickly and we can be more efficient.”

“They say they’re doing all this for our protection. We should say: at what cost?” *images used with permission from BC Civil Liberties Association and Richard Rosenberg.

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How The Trans-Pacific Partnership Will Kill Internet Freedom In Canada

Adam Kingsmith — Tue, 04 Jun 2013 13:34:09 +0000

“A wish list of the 1%, a worldwide corporate power grab of enormous proportions,” “undemocratic and patently unfair,” “the biggest global threat to the Internet.”

These are just a few of the disconcerting phrases legal experts and digital rights advocates are employing to describe the Trans-Pacific Partnership (TPP) — a highly secretive, contentious, and perpetually undemocratic multinational trade agreement currently being negotiated between 600-plus industry advisors and unelected trade representatives on behalf of 11 different national governments including Canada. While the devious, closed-room nature of the discussions have made it difficult to determine how exactly the TPP will infringe on freedoms of speech, rights to privacy, and peoples’ abilities to innovate on the Internet, a leaked draft from February of 2011 reveals that concerned citizens have every reason to be alarmed by the many copyright enforcement provisions buried deep within this trade deal.

As the above introductory video emphasises, what we do know for certain is this — thanks largely to relentless lobbying on the part of multinational telecom giants, the TPP endeavours to turn the Internet into a highly regulated and increasingly scrutinised digital environment through the reconfiguring of international rules concerning the enforcement of intellectual property (IP) laws in a way that favours profit-focused private interests and state-focused surveillance over public and shared information. If established — ratification is scheduled for October of this year — the TPP will effectively create what amounts to a secretive and criminalising “Internet Trap” that will challenge digital freedom as we know it in 4 particularly distressing ways. First, the TPP will dramatically regulate the sharing of digital content on social and search platforms by prohibiting the use of temporary copies — files automatically copied by computers into their random access memory (RAM). According to experts at InternetNZ, these temporary copies are critical for the routine operation of social media platforms because they allow videos to be smoothly buffered in memory, browser cache files to be stored on servers to speed up the loading of websites, and copies of visited pages to be stored in a temporary Internet files folder on your hard drive. Second, the TPP will eradicate privacy safeguards by requiring all Internet service providers (ISPs) to systematically filter, collect, and surrender customer information to government monitors and corporate regulators upon request — eradicating any remaining vestiges of the online anonymity that once protected digital interactions. Third, the TPP will allow media conglomerates to circumvent national legal systems by unilaterally fining users, removing undesirable content, deleting entire websites, and terminating Internet access under the guise of vague and inauspicious “three-strikes” mechanisms which would heavily favour media firms over individual users. Fourth, the TPP will force all signatories to harmonise their domestic policies and laws with the restrictive US-directed provisions of the agreement. This means all parties would have to abandon any efforts to learn from the mistakes of notoriously stifling US copyright laws such as the Digital Millennium Copyright Act (DMCA), and instead adopt even the most controversial aspects of US legislation in their entirety. In Canada alone, the forceful adaptation of coercive US-based TPP regulations would mean a ban on unlocking private digital devices such as mobile phones, 20-year increases to posthumous patents for written and recorded works, the criminalising of all petty copyright infringement for non-profit, non-commercial and educational purposes, the disclosure of personal information without privacy safeguards, and harsher criminal penalties for instances of non-compliance on takedown orders. In short, the TPP in Canada would make already repressive and controversial domestic copyright legislations such as Bill C-11 seem light-hearted in comparison. What’s more, the Office of the United States Trade Representative (USTR) — one of the principle architects of the TPP’s authoritarian IP chapter, has recently released a report directly criticising Canada for its data security policies. Arguing that the government’s strategy of protecting private data from being subjected to often-invasive surveillance and retention regimes offshore puts our economy at risk of being “left behind” in today’s private-interest-first, public-interest-second system. If only we could be so lucky. Perhaps even more disturbing than the TPP’s relentless pressure to conform relatively lenient Canadian IP standards to exploitative and manipulative US-inspired policies — contradicting nearly every principle on which the Internet was founded — is the fact that the negotiations are being completed by unelected trade representatives in utter secrecy without any public or journalistic consultation. And make no mistake — this closed-door approach is a dangerous new trend. Before 2006, most international IP negotiations were conducted through a multilateral process that publicised all proposals and let NGOs, intellectuals, and public interest groups weigh in. But due to high-profile defeats like Stop Online Piracy Act (SOPA) and increased public outcry, the emphasis has shifted to clandestine bi-lateral talks in the hopes that confidentiality will deter concerned citizens from asking questions. Ironically, all this confidentiality only serves to further highlight the fact that all parties involved know just how much public recoil they would face if the TPP’s policies — which put at risk some of the most fundamental rights that enable access to knowledge for the world’s citizens — were to be exposed before they are finalised. Even though concerned citizens, public interest groups, academics, and NGOs alike are forbidden from taking part in a process that will drastically restrict the way Canadians — and millions of other peoples — access, share, and communicate online, the very Internet that the TPP seeks to regulate is a powerful tool to fight back with. So email, post, call, or tweet at your MP or local media outlet voicing your discontent regarding the TPP’s Internet-muzzling vision, sign OpenMedia.ca’s “Stop the Trap” petition currently being circulated to key government leaders and corporate trade representatives on Parliament Hill, and most of all, talk openly about the TPP. Talk about it with your family, your friends, your co-workers, and with strangers in public spaces on and off the Web. By confronting secrecy with awareness we can shift the TPP into the public square and restore accountability to Internet policies. Image Credit: Wonderlane/Flickr

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Van Harten: Canada “Recklessly” Entering Trans-Pacific Partnership, FIPA

Carol Linnitt — Thu, 13 Dec 2012 19:05:24 +0000

Last week Foreign Affairs and International Trade Canada announced Canada had "officially joined the latest round of Trans-Pacific Partnership (TPP) trade negotiations" after more than two and a half years of talks by previously engaged nations. The 15th round of talks, involving Australia, Brunei, Chile, Malaysia, Mexico, New Zealand, Peru, Singapore, the U.S. and Vietnam, wrapped up yesterday in Auckland.

The TPP has already been the cause of significant concern in the U.S. where citizen groups and elected leaders have argued the agreement is shrouded in secrecy, leaving the American public to speculate about its consequences. This summer, after members of Congress complained corporate access to the trade documents superseded their own, leaked portions of the agreement began to circulate online. At the time Lori Wallach, director of Public Citizen's Global Trade Watch, said, "the outrageous stuff in this leaked text may well be why U.S. trade officials have been so extremely secretive about these past two years of [trade] negotiations." During those two years, while Canada was vying for a seat at the TPP table, America made arguments that seemed to anticipate the furor Canadians would soon feel after the announcement of the Canada-China Foreign Investment Protection and Promotion Agreement, or FIPA. Much like FIPA, the TPP grants unprecedented power to corporate entities with access to international tribunals that have the authority to overrule Canadian decisions regarding domestic policies that may apply to environmental regulation or reform, finance and labour policies and First Nations rights. International investment lawyer and trade agreement expert, Gus Van Harten told DeSmog that Canada is currently on track to become "the most locked in developed country in the world in investor-state arbitration." He added, Canada is "proceeding recklessly" into this enfeebling agreement which will give "almost all foreign corporations in the country exceptional leverage to pressure governments behind closed doors." The Harper government is selling out Canada's long term sovereignty and prosperity in what appears as a thoughtless gamble, without so much as a financial risk assessment. As Van Harten puts it below, "We do not intend to slip on the sidewalk in winter, but we still check for ice." I asked Professor Van Harten 5 questions about the TPP and its relation to the politically-contentious FIPA.

Carol Linnitt: What is the significance of Canada's entry into the TPP? Gus Van Harten: Alongside the Canada-China FIPA and the Canada-Europe CETA [Comprehensive Economic Trade Agreement], the TPP is very significant for Canada. These are part of the trio of trade or investment deals now pursued by the government and they are the most significant such deals for Canada since NAFTA. CL: Is the TPP Agreement made public in Canada, either to citizens or elected officials? In other words, do we know what the TPP entails for Canada? GVH: A version of the TPP investment chapter was leaked over the summer. Other parts of the TPP may also have found their way on the public record. But, other than through such leaks, the TPP text would not be public or available to elected members of the legislature, in general, until the negotiations were concluded and agreed text was made public. So we can speculate, or rely on leaked documents, about the content of the treaty in order to analyze its potential implications. CL: You have mentioned before that entry into trade agreements of this nature force disputes of national interests to be settled by international arbiters. GVH: That is correct. The TPP, as proposed, would include an investor-state arbitration mechanism like the one in NAFTA Chapter 11 and, as proposed, in the Canada-China FIPA and the Canada-EU CETA. If Canada agrees to these various deals, it will be the most locked in developed country in the world in terms of investor-state arbitration. This is in contrast the movement by some countries, such as Australia, India, and South Africa, away from investor-state arbitration due to its negative impacts on governments. CL: Does the TPP favour corporate interests and trade expediency over national self-governance? Is Canada in danger of loosing its decision making authority over its own resources and trade preferences? Are we in essence giving up that control to corporations? GVH: Through this network of investor-state mechanisms Canada would give almost all foreign corporations in the country exceptional leverage to pressure governments behind closed doors and, if the companies were unsuccessful in this arm-twisting, to take their claims to arbitration tribunals where the process favours the corporate interest over those of governments, domestic companies, and other domestic constituencies. It is a dangerous and unfortunate development, especially in light of how corporations have used these arbitration mechanisms to frustrate legitimate policy measures on the economy, financial regulation, taxation, public health, and the environment, for example. CL: What are the similarities between FIPA and TPP? If Canadians are concerned about FIPA should they also be concerned about the TPP? GVH: The key similarity is that both contain an investor-state arbitration mechanism that gives special rights and protections to foreign companies to challenge any government decision outside of the Canadian legal system and Canadian courts in arbitration processes that are not independent, open, and fair in the manner of a court. The difference lies in which country's foreign companies obtain these new rights and protections under each treaty. For the government to rush into the FIPA or the TPP, without doing proper risk assessments and legal analyses and without working out the constitutional issues that arise for provincial powers and First Nations rights is irresponsible. Other governments have pulled back from these arbitration mechanisms after they were hit with major lawsuits by major corporations; Canada has a chance to learn from this experience and avoid these outcomes but is proceeding recklessly in the face of evidence about the serious risks to taxpayers and constraints on voters. For example, the federal government indicated, when asked, that it had not done a fiscal risk assessment of the Canada-China FIPA (although it raises a risk of multi-billion dollar awards against Canada) because it had no intention of violating the treaty. This was not a good answer. We do not intend to slip on the sidewalk in winter, but we still check for ice. Moreover, Canada has in various cases been found to have violated NAFTA and ordered to pay compensation to foreign companies, as have other countries under treaties with similar arbitration mechanisms. Image Credit: PMO Photo Gallery

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