Information & Ethics Committee on Jan. 31st, 2017

[Wayne Long, Liberal, Saint John—Rothesay, NB]

Do you have examples of where you think it's gone too far?

[David Fraser]

I don't think we've heard anything about what is going on in the background or between these organizations, and I don't think we are likely to hear about it. That's one of the problems. If there were oversight and accountability and we could actually get a line of sight into what was going on, if they had an obligation to publish in the Canada Gazette all the information-sharing agreements and the magnitude of them, and if they had to report in Parliament every year—as is required for wiretap warrants, for example—then we would have some insight, but as a lawyer, when I look at this and read the statute, I wonder what could go on in here. I think that a whole lot of mischief could go on within the ambit of this statute. I think we need to make sure we're putting appropriate fences around that information.

As I said in my comments, our information and our privacy within government has actually been protected by the existence of those silos, and when it comes to these most intrusive institutions of government, those silos have been broken down.

[Wayne Long, Liberal, Saint John—Rothesay, NB]

Thank you.

Ms. Tribe, hello.

[Laura Tribe]

Hello.

[Wayne Long, Liberal, Saint John—Rothesay, NB]

I want to get your opinions on that too, just to continue on my discussion with Mr. Fraser.

Are you suggesting an outright total scrapping? Would you like to see it modified? What would you do if you were us?

[Laura Tribe]

One of things I want to make clear is that I am speaking on behalf of the media community, not just myself.

One of the things that has been made really clear to the media throughout this entire process since Bill C-51 was first introduced with the information-sharing provisions within it is that it should be scrapped.

Any time we have talked to our community about what they would reform, we get quite a clear message that it is not worth fixing, that it is too big, that it is too broad, and that we are better off scrapping it and introducing smaller, more detailed provisions—

[Wayne Long, Liberal, Saint John—Rothesay, NB]

I appreciate that and I hear you. I think we all realize we're certainly in a new era of heightened security and concern with our national security. However, one thing I continue to struggle with is that people say we need to scrap it and pull it right off the table, but what would you do in lieu of that?

[Laura Tribe]

To Mr. Fraser's point, I think we've seen no strong evidence that there is any problem with scrapping it. We haven't seen the evidence that it was necessary in the first place.

I think there has been a lot of information coming in. I'm very excited to see the results of the national security consultation that Public Safety Canada has conducted, as well as the findings of this committee, and to learn from law enforcement what they think they need and what they need to retain.

I think those are the elements, with more detail, that need to be reintroduced, either through updating the Privacy Act or through separate legislation, and that require proportionality when information is shared.

Really, the ultimate problem we have with what has been introduced is that, to the point about what has gone wrong so far, it could be years before we know what has gone wrong. There is no way for us, as citizens, to actually know what information is being shared about us, who it's being shared with, and whether it's even accurate.

I think it really removes people from the accuracy of their data. It removes them from having any control over their information and an understanding of where it's going, which has some really long-lasting effects, both in terms of negative ramifications and also on people's ability to express themselves.

[The Chair, Conservative, Blaine Calkins]

Thank you very much, Mr. Long.

We now move on to the next seven-minute set of questions. They will be from Mr. Jeneroux, please.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

Thank you, Mr. Chair.

It's good to be back in committee with all of you.

Thank you to the three witnesses. I'm sorry we were late getting here.

I want to quickly clarify, in response to some of the comments that were made earlier in part of the presentation, that we're talking about information sharing. That's the focus of this study.

I'll quickly read into the record the purpose and principles of SCISA: SCISA is intended to protect Canadians against activities that undermine the security of Canada by encouraging and facilitating the sharing of information related to such activities among federal institutions. Some of the conversations seemed to take a bit of a different direction there.

I'll open up with my first question, which concerns the Five Eyes.

We know that it's important to the Government of Canada to have allies across the world. I would like to break it down into three separate questions for all three of you.

Do you believe these types of allied relationships better protect Canadians? If so, do you believe it is important that our national security organizations have tools similar to those of our allies? Are any of you aware of any of the information-sharing laws and oversight mechanisms of any of these allied countries?

I'll open it up to conversation.

[The Chair, Conservative, Blaine Calkins]

Who do you want to go first, Mr. Jeneroux? Who is ready to go?

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

It would be whoever is eager. Mr. Fraser looks eager to go.

[David Fraser]

Thank you.

Yes, I am in favour of collaboration with our allies. I think, in fact, that being a member of NATO has kept us safe since the Second World War. In this age when borders are less relevant, I think that's important when it comes to international crime, which includes terrorism. I think collaborating with our allies is important.

It's a matter of checks and balances within that. It's a matter of proportionality when it comes to intrusive measures. I think that is ultimately the key to it. I think the thing that caused.... When you cast your mind back to the kind of revelation associated with Mr. Snowden, it was not so much that the National Security Agency, the CSE, and others existed and that they were doing their published jobs related to signals intelligence; what was problematic was the bulk data collection, the collecting and analyzing of information about people for whom there was no reasonable suspicion that they were doing anything wrong.

At least for me, it's not an objection to the existence of CSIS. I think it's good. Actually, I'm glad that those powers were taken away from the RCMP following the McDonald commission. I don't have a problem with the existence of the Communications Security Establishment. It's all a matter of proportionality and keeping it all entirely within check.

When it comes to the third question that you asked with respect to information sharing, I don't think I have enough specific information to illuminate you, unfortunately.

[David Elder]

I'm not sure that this is a question that the CBA has addressed and come to a formal position on, so my remarks will be somewhat limited.

I would say that conceptually we would think that some level of sharing with our allies is necessary and that co-operation is in the interests of all of the agencies and all the nations concerned. We're increasingly dealing with global threats to everyone's security, and it does make some sense that we share that information.

However—and I'm not familiar with the individual rules for those foreign agencies, unfortunately—I think the position would be that any of that sharing has to continue to be proportionate and protect the privacy rights of Canadians that this country holds dear.

[Laura Tribe]

I think this is really not something that the OpenMedia community has discussed explicitly, but our mission and mandate is to be open and collaborative. I think that we all want to feel safe and we think that collaboration is important, so this is not to rule out working together with partners. I think this is really to echo what Mr. Fraser was saying about checks and balances.

As to your second question on whether we need similar tools, I think that to some extent it's a little problematic if it gets viewed as an arms race. If we decide that since the NSA has these tools, we need them too, it's problematic if checks and balance and proportionality are not being applied elsewhere. I think what we're really pushing for is for Canada to implement the checks and balances that we need, and then in exchange to actually ask our partners to do that as well.

Without having those checks and balances in place internally, our concern about collaboration with international partners is that the information that we might trust our partners and our own internal government agencies to use respectfully would not be treated the same way once it crossed our national borders. Having some very strict checks and balances and rules and regulations around that aspect is really important to us.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

Ms. Tribe, do you think there are situations in which national security would trump the right to someone's privacy? Maybe you could elaborate on that. What situation would you see that would require protecting national security over the privacy of an individual?

[Laura Tribe]

I'm not a national security expert, so I can't speak to specific cases, but I think we have seen examples. That's the reason we have CSIS and the RCMP. There are very real threats to security and to our national security. In those cases, they identify potential suspects, and that is the information being shared. Bulk collection of data on everyone in Canada or everyone in the U.S., the sharing of all of the information from all the partners on any given individual, really feels like it's beyond the scope of national security. Identifying the information that is needed and how to share that is really the difference. I don't have the expertise to know exactly the information that's required and I'm not a member of law enforcement, but I think that's really the difference.

[The Chair, Conservative, Blaine Calkins]

Thank you very much, Mr. Jeneroux.

Mr. Blaikie, you have seven minutes, please.

[Daniel Blaikie, NDP, Elmwood—Transcona, MB]

Thank you very much.

I know we've heard pretty clearly from two of the witnesses today that the best place to start is to scrap this legislation and start anew. I was wondering, Mr. Elder, if your organization has a preference in terms of process. Does your organization think that this needs to be done away with first, and then if there are needs in terms of expanding the law for information sharing, that they be dealt with after this particular statute is out of the way, or is your organization of the view that there's enough to work with here, and it's just a matter of a suite of amendments?

[David Elder]

From the very beginning, back to Bill C-51, which initially proposed the SCISA framework, the CBA's approach has always been about making the necessary adjustments to that law to carry on. To the best of my knowledge, we've never addressed a question or pursued a position that would have favoured the outright removal of the legislation.

[Daniel Blaikie, NDP, Elmwood—Transcona, MB]

Given some of the risks to the privacy of Canadians that you've identified, given that it can take a long time to draft amendments, do you think there's a significant risk to the privacy of Canadians in maintaining this framework while trying to figure out what a better framework would be, and that therefore it might make sense to try to dispense with this particular bit of legislation so that the Privacy Act can do its job while government figures out how to enact other types of changes to the information-sharing regime?

[David Elder]

To clarify that I'm speaking on behalf of the CBA, I think it's clear that the CBA thinks there are a number of material concerns with the law as it's currently enacted and that there's potential for abuse. There's potential for information sharing that I think threatens the privacy of Canadians. If that were to continue as is for a lengthy period of time, I think it would be problematic.

Again, as an organization we haven't addressed the issue about having the law repealed, but we have put forward, both in my remarks today and in the position paper we left you, a number of places where adjustments could be made to significantly narrow the focus and the subsequent scope of use of the information.

[Daniel Blaikie, NDP, Elmwood—Transcona, MB]

Ms. Tribe mentioned in her opening remarks the recent executive order by President Trump having to do with not having U.S. privacy law extend its protection to non-American citizens. From any of you who care to answer, I'm wondering if you think there is a way to work in reasonable legislative protection for information, either to this statute or to some other law governing the sharing of information practices.

If information is being shared between departments and one department doesn't have a mandate to share that information with some other country that may not have the same protection for Canadians' privacy, but a statute like SCISA allows that information to be transferred seamlessly to another department that does, do you think there are reasonable ways within the law to afford Canadians some protection from other governments with which we would want to share information for specific purposes? Once that information has left the border, so to speak—which is a funny way to speak when we're talking about technology and information sharing, because it doesn't know those borders—is there some reasonable way to try to incorporate protections for Canadian citizens into our own law, or is that information out of our hands once it is shared?

[David Fraser]

How exactly you would do that is a very complicated question. A lot of effort went into looking at what happened to Maher Arar, for example, which was triggered by the sharing of information with the United States by Canadian law enforcement and national security agencies, and the consequences of that. We've had discussions about Canada not wanting to participate in or condone information-sharing practices related to torture, for example.

That is such a big picture and such an important question. It's actually outside the scope of SCISA, because a whole lot of information sharing that happens with the United States—and our other allies; it's not just the United States—happens outside the ambit of SCISA and any particular statute. Nothing in the Privacy Act, for example, limits the disclosure for those sorts of purposes, so that would merit a study entirely of its own within this committee.

At least where it touches on SCISA, I understand as part of the study you will be hearing from folks from the RCMP and CSIS and the Communications Security Establishment. I would ask them specifically what information has been shared within departments since they've had this ability under SCISA that they couldn't share before. What amount of that information has crossed the border? Once you have that information—and as parliamentarians you can require a witness to answer such a question—you're going to be in a much better position to understand what's going on. However, I don't expect you're going to get a straight answer.

[David Elder]

I will jump in and add my two cents.

To build a bit on what David said, I agree that it's certainly a complicated question. I think there are inherent limitations in the ability of domestic legislation, obviously, to govern what happens to information once it's in the hands of other sovereign governments. That has always been an issue.

There are at least a couple of things that traditionally we've done. One of them David alluded to, which is being careful with who we share things with and being careful with how much we share. Part of that involves some understanding of the nature of the foreign governments, the way they operate, and the type of civil liberty protections they offer to their own citizens as well as to foreign citizens. We can be somewhat choosy in how we share, with whom, and how much.

The second thing that I think Canada has traditionally done is through the treaty process. We'll have treaties with various governments that will help govern how information is shared, pursuant to procedural safeguards, etc.