Madam Speaker, I find today's debate interesting. We are learning many things. I would like to begin by talking a bit about the nature of technology.
Bill C-30 is fundamentally about technology, very complex and rapidly evolving technology that we use daily, but which we do not always fully understand.
However, Canadians are beginning to understand that digital communications technology and its associated everyday practical applications, like email, the Internet and hands-free communications through portable devices such as smart phones is eroding individual privacy. There have been two distinct reactions to this fact.
On the one hand there are those who say this is disconcerting, that we need to act to prevent further erosion of privacy in this brave new world of electronic communications. On the other hand there are those who say to get used to it, that there is nothing we can do. They say that we have to learn to live with this new way of being and communicating, that in the end no one really cares about the details of our private lives. They say that we are all in the same boat, that we should let go of our concerns, adjust and adapt.
The latter view will strike someone who has been refused a job because of his or her careless and sophomoric Facebook entry years ago as patently naive to think that we should just learn to live with the new breaches of privacy.
I will digress to talk about the inherent nature of technology. This understanding is based on my reading many years ago of a book by a famous Canadian political philosopher, George Grant, entitled, Technology and Justice.
What I took from that book is that technology is not neutral. Many will say that this is obvious, that this is commonplace, that technology can be used for the good or it can be enlisted for less noble ends. For example, nuclear technology can be used for medical diagnosis and energy production to supply hospitals, homes and businesses with power, or it can be used for mutually destructive war. I think we all get this. I think that is obvious to all of us.
Grant's argument goes a bit deeper. Technology is not neutral in the sense that it is not simply developed to satisfy a curiosity or to be left on the shelf. We are not talking about pure research, which is often about scientists playing with ideas and discovering the unexpected simply to satisfy their curiosity. A theoretical physicist might say that is what occupies his or her day. It is simply the exploration of ideas and the playing of ideas for the sake of it, and then something drops out of it unexpectedly.
We feel compelled to use technology once we have it. In fact, that is why we develop it in the first place, to fashion our reality, to fashion our environment, to suit our practical needs and interests.
Obviously in developing technology most of us feel that our goal is a noble one, even when we drift into using technology for questionable or downright destructive ends in retrospect.
Technology is meant to be used. It is intended to be used to manipulate or control our reality for our own self-interest as human beings, for our benefit as human beings, whether we are talking about medical treatment to make people healthy or to transform the Alberta oil sands into profit, thus benefiting our balance of trade.
Let us look at computer technology. Computers allow for compiling databases. This was one of their first uses. Computerized databases are useful. Once we have the capability to do so, as some lament, we want to catalogue everything. We want to collect information, sometimes just for the sake of it, until we figure out what to do with that data. We do not need to go far to see how databases are used, and sometimes quite aggressively, to attain a specific goal.
Political parties use databases to contact voters, build support and raise money. These databases have the capacity to be used in an underhanded way, as we are seeing emerge in the current Conservative robocall scandal, but that is not the main point of my discussion.
As in the case with society as a whole, technology has changed policing. Policing used to simply be about catching law-breakers or first deterring crime by the fact of a police presence, like a cop on the beat. Now, in the words of David Lyon, the world-leading surveillance studies scholar:
As with database marketing, the policing systems are symptomatic of broader trends. In this case the trend is towards attempting prediction and pre-emption of behaviors, and of a shift to what is called “actuarial justice” in which communication of knowledge about probabilities plays a greatly increased role in assessments of risk.
What the above quote means is that modern policing is more and more about data collection, necessarily through surveillance and building profiles through data collection and then tracking individuals who could theoretically pose a problem for public security.
That is all well and good. We want to prevent crime. We want the police to be proactive and vigilant in preventing crime. However, the new technologically sophisticated crime prevention tools also come with side effects. Some of these we may not want to live with or otherwise want to constrain through rigorous, effective and wise laws, or by standing up to hold the government to account when it introduces legislation that is rooted in this human fascination with the power and possibilities of technology in allowing us to control our surroundings.
Proponents of greater state surveillance say that we have nothing to be worried about if we are not doing anything wrong. However, that attitude, apart from sounding like it comes from big brother's two-way television monitor, ignores the fact that individuals can suffer the consequences of surveillance even if they have done nothing wrong. We only need to think of Maher Arar and others who have been unjustly detained at the border or at airports and who were completely innocent. Surveillance technology has placed them in the wrong category, under the wrong tab, in the big brother database, even though they had nothing to hide.
This is where modern surveillance technology can lead us if we are not careful to constrain and control it through good laws that protect our charter right to privacy and our right to live in a healthy free-thinking democracy. These new Internet surveillance technologies can catch the innocent in its ever-expanding web.
Christopher Parsons, at the University of Victoria, has described how this can happen. We need to consider the following scenario, and I will quote because I do not think anyone could have put it better. He says:
In college/university/your private life you...communicate with individuals who have, or presently do, agitate peacefully against certain state [behaviours]. You may or may not be aware that those individuals behaviour...[or perhaps you know nothing about it]. [In any case,] you...engage in discussions with those people online, either on websites that those opposed to certain state behaviours, or in the comments section of newspaper articles, or other electronic formats. Should the police be interested in tracking the individuals invested in an issue (e.g. legalization of marijuana [or] protest against federal decisions concerning Sri Lankan immigrants...[with whom you have been talking] [your]...subscriber records for all who have participated in the online discussion. Now, let’s...assume that you were not supportive of opposition to an official government position and...aren’t necessarily of direct interest to authorities. Regardless, your subscriber data and that of everyone else engaged in these discussions might be requested by the police. No warrant is required to provide this information. ... They would get the same information for every participant of the discussion. With this information they could turn to whomever provided the email account, as well as contact the ISP who provisioned the IP address at the specific time that you posted your message. With information from the email provider they may be able to definitely identify the ISP that you use and, from there, your name, address, and so forth. ... [You] will never know that [you were] added into such a database because the service provider could not legally disclose that the information had been released and, as a result, [your] life prospects may change for legally associating and speaking with those who were similarly engaged in legal speech and association.
Some people will say that they would never have these kinds of discussions online, only over the phone. Bill C-30's provisions, allowing the state to obtain six pieces of subscriber information without a warrant, still leaves a law-abiding citizen vulnerable. If people have a cellphone and are downtown shopping and they happen to walk by a protest, such as a G20 protest, stop with a friend to observe this because it is something they do not see everyday; or they visit an occupy camp; or were a passive spectator in the 2011 Vancouver hockey riots, their cellphone's identity may be captured by police. This can happen because police can use a technology known in the U.S. as a Stringray IMSI catcher, which is a piece of equipment that emulates a cellphone tower and captures IMSI numbers within several kilometres of the capture.
IMSI means international mobile subscriber identity number. This number can be taken to a mobile phone provider and used under clause 16(1) of Bill C-30 to obtain one's name, address and Internet protocol number. In other words, the cellphone subscriber can find his or her information sent to police and entered into a police database.
As a result of clause 23 of Bill C-30, the telecommunications service provider would be prohibited from disclosing to a subscriber that his or her basic subscriber information has been submitted upon request to a law enforcement agency. As Christopher Parsons concluded:
The capacity to acquire IMSI numbers en masse, combined with legal powers to compel subscriber information, creates the perfect framework for mass fishing expeditions based on where citizens are physically present.
Some might say that the police would never track people in this way nor would they go to the next step of gathering information on people's friends and acquaintances. However, the evidence confirms otherwise. In fact, at the Vancouver Olympics, people who were conducting legal actions and protests of the games became the targets of a surveillance apparatus that followed their entries on web forums even though disclosed memos obtained in the lead up to the Olympics found that no specific credible threat existed.
Furthermore, he states:
Surveillance and intelligence gathering did not solely focus on citizens involved...but also their contacts, friends, students, former partners, and academic and professional acquaintances.
Efforts were made to recruit neighbours, friends and acquaintances to spy on suspected activists.
This concern about Bill C-30 opening the door further to the state being able to track protestors who are legally voicing their views in a democracy was the motivation and the essence of my question for the Minister of Public Safety on February 14 when the minister, through his answer, triggered a national firestorm by his disproportionate answer to that question.
Proponents of expanding the surveillance powers through the adoption of Bill C-30 claim that these powers would be used to investigate the most serious crimes only. However, this is not what the experience in other countries shows. In other jurisdictions, similar powers have been used to investigate less serious offences.
According to Nestor Arellano, there is no shortage of research which indicates that the implementation of an online surveillance regime in the European Union and the United States has been fraught with flaws, abuse and costs ultimately shouldered by Internet service providers tasked by government to essentially snoop on their customers.
More than 10 years ago, the United Kingdom passed the regulation of investigatory powers act to extend law enforcement agencies access to communication systems to help police battle crime and terrorist related activity. Under a voluntary code of practice, ISPs retain data such as content of email servers, email server logs, IP addresses, SMS messages and others from six to twelve months. Reports from the interception commissioner, which provides a yearly assessment of interception of communication traffic, indicate that a growing number of interception errors are occurring. In 2007, there were 24 interception errors and breaches found, which the commissioner deemed to be too high, according to Mr. Parsons.
In 2009, there were 36 interception errors and breaches attributed to the general communications headquarters of the secret service, Her Majesty's Revenue Agency and Customs Agency, the Serious Organised Crime Agency, the Scottish government, the metropolitan police counterterrorism command and the National Technical Assistance Centre. During that year, there were a total of 525,130 requests for communications data that resulted in 661 reported errors.
A report released by the U.K. civil liberties group Big Brother Watch paints a troubling picture of how law enforcement agents handle data that passes through their hands. The organization found that, between 2007 and 2010, 243 police officers and staff received criminal convictions for breaking the country's data protection act; 98 police officers and staff were terminated for breaching the data protection act; and 904 police officers and staff were subjected to internal disciplinary procedures for breaching the data protection act. In one notable case, no less than 208 officers and staff received legal caution for viewing computer records related to a high profile crime. In another, a staff member was dismissed for discussing police information on Facebook. Numerous others were found to have access to criminal records and personal data for no obvious policing purposes.
In the United States, the problem is more significant, according to Parsons who says that the country “suffers from endemic inappropriate surveillance”. He said that the National Security Agency reportedly runs a warrantless wiretapping system with the assistance of major telecom providers, such as AT&T. A large amount of the surveillance conducted by state and federal agencies goes unreported.
This leads me to my conclusion. Privacy is fundamental in a healthy democracy, which is why our Canadian Charter of Rights and Freedoms contains section 8. Section 8 of the charter provides everyone in Canada with protection against unreasonable search and seizure. This right provides Canadians with our primary source of constitutionally enforced privacy rights against unreasonable intrusion from the state. Typically, this protects personal information that can be obtained through searching someone in a pat-down or entering someone's property on surveillance.
Why is privacy fundamental? If law-abiding citizens feel they are being spied on, they begin to withdraw from the normal activities of life, like expressing themselves freely and legitimately, including nowadays through digital communication. When they withdraw, the seed of fear grows and whenever there is fear there is potential for manipulation by those in charge. Those in charge, who, understandably, like their powerful position, will drift, perhaps unconsciously, toward using that power to accumulate even more power. They will always do so under the pretense that the additional power is being used for the good. Those same people in charge, at least the less discerning and perhaps more sincere ones, will believe in their hearts that the system of increased state power they are building is for the larger good.
We hear from proponents of Bill C-30 that we must emulate other countries. However, we are not Europe and we are not the United States. We have the most modern rights charter of any of those countries. We are highly evolved and often ahead of the pack when it comes to respect for individual liberties. As Parsons has said, there is no need for cross-jurisdictional envy in these matters.