June 30, 2013 - No. 25

Spying, Counter-Spying, Claims of
Industrial Espionage and Nonsense About Plausible Deniability

The Old World Passes Away to
Be Replaced by Anarchy and Violence --
A Dangerous Situation Indeed

Protest outside U.S. Embassy in Berlin, June 18, 2013.

The recent exposure of the U.S. National Security Agency's (NSA) PRISM surveillance program has met with all sorts of justifications and denials by U.S. ruling circles. Chief amongst these is that the U.S. government fully upholds the Constitution and does not spy on its citizens. Related exposures about the extent of spying carried out by Canadian agencies and the amount of resources expended are presented as infringements on privacy rights and the need to protect them or, conversely, which amounts to the same thing, the alleged need to infringe on them to protect national security and the greater good.

Meanwhile, the cynicism of the ruling circles is beyond belief. Not only has it been revealed that the largest security consortiums themselves hack into the security systems of rival states, they then blame the rival states' security services for hacking, all for purposes of having businesses and governments trust them to protect them against counter-spying. Within this, the governments forming the imperialist system of states criminalize the people who dare to become "whistleblowers," blaming them for endangering national security. This is not only true in the case of the United States, which is turning the world upside down to grab hold of its former CIA agent Edward Snowden, but also in Canada where the Harper government has declared that any employee who takes a problem outside their organization and not to their own boss is guilty of a possible breach of national security. It does not become more self-serving than that. In a similar vein, the United States makes threats and takes vindictive measures against countries that do not abide by its dictate, in the current case against Ecuador for even contemplating whether to harbour the latest whistleblower and those responsible for "leaks."

What is taking place is far more serious than sophistic attempts to fool the gullible. Such massive exercises in disinformation have become par for the course making the world a truly irrational place. Issues become so confused and overwhelming that no known frame of reference renders them comprehensible or actionable. People are not supposed to see the forest for the trees and therefore become paralyzed and incapable of doing anything about the unfolding events.

To detract attention from the need to draw warranted conclusions about the unfolding events, it is said that much of what is taking place concerns industrial espionage. But this is not simple inter-monopoly competition where one monopoly steals secrets from another. The world has descended into a state of anarchy -- no authority at all is accepted and everyone goes above everyone else's head to gain an advantage for their own private interests within their own imperialist bloc or system of states. No power is capable of limiting the private interests that are in competition with one another.

Attributing what is happening in the world to claims about spying, counter-spying, breaches of the U.S. Constitution, privacy rights or putting corporations under the rule of law are quite useless given a rule of law no longer exists. These claims of spying etc are at best statements of fact. The claims do not draw warranted conclusions on the state of the world so that the working people of all countries can act in a manner to put a check on this unfettered power unleashed against them.

Radar installation, thought to be part of the ECHELON network, at a U.S. base in Bad Aibling, Germany.

The fact that everyone is spying on everyone else indicates what? The NSA runs not only the PRISM program but also the U.S.-led ECHELON global surveillance network, in which Britain, Australia, New Zealand and Canada are junior partners. The system permits one country to spy on the citizens of another and then pass along the information to those citizens' government. In this way, information obtained through the supra-national spy network can be "laundered" to give "plausible deniability" to the governments of any of the five countries to say, "No, we do no spy on our own citizens."

Furthermore, while information about the ECHELON network is limited -- the U.S. still denies its existence -- its main purpose is said to be industrial espionage, i.e., it is a tool used in service of the biggest monopolies against their rivals or other threats to their private interests. This, however, covers up its counter-insurgency role. To make the matter still more complicated, agencies within the U.S. operate against one another and the integrity of the chain of command is in doubt from top to bottom and bottom to top.

Consider the example of Hong Kong-based internet file sharing and storage service Megaupload, which was taken down by U.S. authorities ostensibly because of copyright infringement. A September 24, 2012 item by Investigate Magazine reported that the New Zealand government, "ordered an urgent inquiry after discovering its most secretive intelligence agency was eavesdropping on the communications of targets in the controversial FBI sting against Megaupload founder Kim Dotcom (aka Schmitz)....

"The Government Communications Security Bureau is part of the ECHELON international surveillance system used by the U.S., Australia, NZ, Britain and Canada to intercept global communications traffic, and intelligence sources say the GCSB's involvement is a sure sign the United States was using the Kiwis to listen in, given that the entire operation was driven by the U.S.

"Under U.S. law the NSA and other agencies are forbidden from intercepting the communications of U.S. citizens domestically, but the ECHELON system provides a work-around of 'plausible deniability,' whereby the intercept is done by foreign agencies outside the U.S. and the information then 'shared' with American intelligence officials."

All calls to end the violations of the U.S. Constitution are meaningless when the state powers have been usurped by monopoly interests that clearly have the power to make an end run around rights enshrined in the Constitution. To argue the necessity to uphold the Constitution begs the question that the Constitution is no longer an effective instrument to uphold public right. New definitions and new arrangements are required. Irrationalism has taken over and a new enlightenment movement is needed to establish a new equilibrium. No rational argument can justify what has become irrational. To attempt to do so, one becomes irrational oneself.

This old world in which the bourgeoisie constituted itself the nation some 400 years ago and acted in the name of the people has passed away. It has given rise to a state of anarchy and violence worldwide. Anarchy has risen to the position of authority and runs rampant uncontrolled and uncontrollable. Even as old authorities in the form of presidents and prime ministers with arbitrary powers try to keep their factions in power and rival factions in check using the state power, another authority always finds a way to de facto come out on top.

Clearly, a new world in which the working class must constitute itself the nation and vest sovereignty in the people is crying out to be brought into being. It cannot be done by arguing or acting within the domain of anarchy and violence in which the ruling circles are operating and want to drag us into and under. It can only be done by activating the human factor social consciousness and creating a new world, a vibrant world where all human and natural resources are used so that societies permit the human personalities to flourish and create more of the same. This can be done and must be done by building new forms of organization based on self-reliance and the independent thinking and voice of those who produce the wealth, not those who rob it in a never ending cycle of greed and destruction.

All out to reject the current state of anarchy and violence! All out to bring into being new anti-imperialist nation states that vest sovereignty in the people and do not permit hooliganism at home and abroad!

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The Canadian Connection

Canada and the U.S.-Led Spy Network

Following the exposure of the secret PRISM metadata surveillance program run by the U.S. National Security Agency (NSA), it has also come to light Canada has had a similar program in place for some time as well, run by an agency known as the Communications Security Establishment Canada (CSEC).

Leaked powerpoint slide from U.S. PRISM spy program. Click to enlarge.

A report from the Globe and Mail explains the PRISM program as follows: "In recent days, disclosures of secret surveillance programs operated by the U.S. National Security Agency have set off a storm of debate. Leaked documents and accounts have described an NSA project known as PRISM that allegedly gives the agency access to data from nine U.S. Internet companies including Google and Facebook. Another leaked document describes the existence of a government program that collects the 'telephony metadata' surrounding millions of phone calls placed by Americans every day, without anyone listening to the actual conversations."

The CSEC and its work is directly linked to that of the NSA. It was established in 1946 and operates in secrecy -- the Canadian government only acknowledged its existence in 2002. CSEC is Canada's component of the U.S. NSA-led intelligence-sharing network known as ECHELON which also includes Britain, Australia and New Zealand. The CSEC has staff of more than 2,000, including skilled mathematicians and computer experts. It has an annual budget of about $400 million.

It has now come to light that the CSEC has had a metadata surveillance program targeting Canadians and others in place for some time.

The term metadata refers to "data about data" and amongst other things refers to information about when, where, by whom and by what means the data was created, and to whom it was sent. Examples of metadata are phone records, internet protocol addresses and other telecommunications data that can give the state all kinds of information. Authorities pool vast amounts of metadata to map out "social networks" that can indicate who is communicating with whom and for what purpose. In the U.S. for example the collection of metadata was used by the FBI to target General David Petraeus, director of the CIA from 2011 to 2012, for an extra-marital affair.

In Canada, the CSEC's "metadata program" was first explicitly approved in a 2005 secret ministerial decree signed by Liberal Defence Minister Bill Graham during the Martin Liberal government. Such decrees are not subject to Parliamentary approval. The program was suspended for more than a year in 2008 after the Commissioner Charles Gonthier, a retired Supreme Court judge, who oversees the CSEC raised concerns that it could lead to warrantless surveillance of Canadians on behalf of domestic security agencies such as the Canadian Security Intelligence Service (CSIS) and the RCMP.

According to documents obtained by the media through Access to Information requests, Defence Minister Peter MacKay signed a new ministerial directive in 2011 to continue the surveillance under new secret rules. This directive also authorized other espionage programs, some of which have been completely censored in the heavily redacted documents on the grounds of national security.

In seeking renewal of the program, the CSEC described its activities to MacKay in the following manner: "Metadata is information associated with a telecommunication and not a communication." Officials said, "Current privacy protection measures are adequate."

Officials say that the CSEC "incidentally" intercepts Canadian communications, but takes pains to purge or "anonymize" such data after it is obtained. "[M]etadata is used to isolate and identify foreign communications, as the CSEC is prohibited by law from directing its activities at Canadians," wrote CSEC spokesman Ryan Foreman in an e-mail to the Globe and Mail.

In the Parliament, MacKay described the obvious collection of Canadian's telecommunications data using weasel words. He claimed that the CSEC does not "target Canadians" and that it only uses the information to go after foreign terrorists. The collection of vast amounts of data on the internet and telephone activities of Canadians itself does not "target" a Canadian, it targets all Canadians. From this data collected on Canadians the state then targets certain people after the fact. It is unacceptable.

The claim that the agency does not "target Canadians" raises other questions. Does it hand information over to domestic agencies such as CSIS, the RCMP, Canada Border Services Agency or others to then target Canadians? Does it hand over information on Canadians to U.S. security agencies such as the CIA, FBI or others in return for information on specific Canadians from those same agencies, or other NATO allies? In this arrangement both Canadian and U.S. agencies can get around laws preventing them from spying on their own citizens by getting others to do it for them. Concerns are already being raised about whether the U.S. government's PRISM program, which collects metadata, was used to collect data on Canadian and American citizens.

A document obtained by the Canadian Press says the CSEC's use of metadata "will be subject to strict conditions to protect the privacy of Canadians, consistent with these standards governing the CSEC's other programs." It lists five steps the CSEC must take to protect Canadian privacy. Revealing the bogus nature of the five steps, the steps themselves were deleted from the version released under the access law, meaning that guidelines for how security agencies are, or are not, to use the data to target Canadians are kept secret from Canadians.

The CSEC has a program that targets the movement of the Quebec people for self-determination called "The French Problem." The program was revealed in a 1994 book by former CSEC spy Mike Frost and it is alleged the program still exists today. Frost also alleged that during the 1970s he spied on Margaret Trudeau's car phone after the RCMP Security Service asked him to figure out if the prime minister's wife was smoking marijuana. "There was no watchdog. They just did whatever they felt like doing." Not long after the book was published, a commissioner was assigned to oversee the CSEC's activities.

This so-called security work of the CSEC is being expanded while governments at all levels implement a bogus austerity agenda that undermines Canadians security every day, by cutting health care, education and other social programs, as well as employment insurance and benefits to injured workers, or by privatizing social programs. Amidst the exposure of the shady activities of the CSEC, the agency is having a new $880 million headquarters built right next door to CSIS headquarters in Ottawa. The building is as big as a football stadium and will include a cafeteria, a walking trail, showers, a 400-seat conference centre and a privately-run daycare. The new building will include a glass footbridge to CSIS headquarters. Head of CSEC, John Forster, told a Senate committee last November that the new headquarters is required to "keep at bay those who want to infiltrate our government systems." Nonetheless, an Australian firm Plenary Properties will manage the building for 30 years.

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Concerns Raised by Privacy Commissioner
and in Parliament

The federal Privacy Commissioner Jennifer Stoddart on June 11 raised concerns about the U.S. government's widescale electronic eavesdropping operations known as PRISM and said she would look into its implications for Canada, states an item from the Canadian Press. The CP report continues:

"Stoddart says while it is difficult to assess the merit of the allegations, she will confer with the watchdog that oversees the Communications Security Establishment [CSE] -- the Canadian counterpart to the [National Security Agency] -- to determine how the personal information of Canadians may be affected.

"She also plans to contact fellow international data-protection authorities, who may share similar concerns about the information of their citizens, to discuss combining fact-finding efforts. [...]

"The CSE Commissioner, who keeps tabs on Canada's electronic eavesdropping agency, has been aware of its data-mining activities for at least seven years.

"Robert Decary, the retired judge who keeps an eye on Canada's Communications Security Establishment, first examined how the spy outfit uses what is known as metadata in 2006 -- and he continues to monitor the programs. [...]

"In December 2011, the CSE advised Decary that Defence Minister Peter MacKay had approved seven new directives to the spy service, including one on the use of metadata gleaned through foreign intelligence gathering.

"The directive updated one that had been in place since 2005, though it is not clear why the tweak was necessary.

"The document, obtained by The Canadian Press under the Access to Information Act, says the CSE's use of metadata 'will be subject to strict conditions to protect the privacy of Canadians, consistent with these standards governing CSE's other programs.'

"It lists five steps the CSE must take to protect Canadian privacy, though the steps themselves were deleted from the version released under the access law. Directed at 'foreign threats,' MacKay says. [...]

"CSE spokesman Ryan Foreman said [...] the agency could not comment on its methods, operations or capabilities, but added the agency functions within all Canadian laws."

Similar concerns were raised in the Parliament about PRISM and the CSE. The following exchange took place in the House of Commons on June 10:

Thomas Mulcair, NDP MP for Outremont, NDP Leader: "Mr. Speaker, we now know that the American monitoring program, PRISM, also apparently affected communications of millions of Canadians. We have learned that the Conservative government has its own electronic monitoring program. It was put in place by the Liberals and was resurrected by the Conservatives in 2011. Is the Canadian government actually monitoring Canadians' telephone calls and emails?

"Are the Conservatives monitoring the phone and email records of Canadians, yes or no?"

Peter MacKay, Conservative MP for Central Nova, Minister of National Defence: "Mr. Speaker, let me be very clear. This program is specifically prohibited from looking at the information of Canadians. This program is very much directed at activities outside the country, foreign threats, in fact. There is rigorous oversight. There is legislation in place that specifically dictates what can and cannot be examined. Here is what the CSE Commissioner found: 'Activities were authorized and carried out in accordance with the law, ministerial requirements, and CSEC's policies and procedures.'"

Jack Harris, NDP MP for St. John's East, Official Opposition Critic for Defence: "Mr. Speaker, we are hearing what we think is a bit of doublespeak from the minister. [...] There are reports today that the minister has authorized domestic monitoring by the CSE. Now, the National Defence Act says that the activities of CSE 'shall not be directed at Canadians or any person in Canada.' I want the minister to listen carefully. Can the government confirm that the CSE has not been collecting data on the communications of Canadians?"

Peter MacKay: "Mr. Speaker, my learned friend has answered his own question. In fact, the program, as I just said, is prohibited, by law, from directing its activities at Canadians anywhere in the world or at any person in Canada. I remind him again that in the report, the commissioner said, 'I found the new policies and procedures were comprehensive and contained satisfactory measures to protect the privacy of Canadians.' He went on to laud CSE's culture of compliance."

Jack Harris: "Mr. Speaker, we are obviously going to need to see those directives. PRISM, the U.S. government program that collects information from places like Google, Apple and Facebook, has been making headlines around the world. People are concerned. In the U.K., the government has committed to report to Parliament about its use of PRISM. Is Canada's Communications Security Establishment making use of information from PRISM? If so, will the government report this use to Parliament, as the British government is doing?"

Peter MacKay: "Mr. Speaker, I have a heads-up for the member. It has been doing it for years, and the reports are tabled in Parliament. I would point him, again, to the fact that CSE does not target the communications of Canadians. This is foreign intelligence. This is something that has been happening for years. In fact, as I said, the commissioner highlighted that the 'activities were authorized and carried out in accordance with the law, ministerial requirements, and CSEC's policies and procedures.'"

On June 14, a request for an emergency debate about the role of the Communications Security Establishment was made by NDP MP Charmaine Borg. This request was declined by the Speaker of the House.

Charmaine Borg, NDP MP for Terrebonne-- Blainville: "[...] I am requesting that an emergency debate on the Communications Security Establishment Canada's metadata collection program be held as soon as possible.

"An emergency debate is needed so that parliamentarians can take an in- depth look at the extent to which Canadians' personal information, metadata and other information are collected by the police, law enforcement agencies and national security agencies. This debate is also needed so that we can look at measures that will lead to appropriate parliamentary oversight and ways to balance public and national security interests with Canadians' privacy rights.

"On Monday, [June 10,] it was announced that the Communications Security Establishment Canada was potentially collecting metadata on Canadians. Since then, Canadians have been very concerned. They want to ensure that a parliamentary oversight system is in place. We know that, right now, just one judge, with the help of a small team, is responsible for examining this office's operations. He has testified in committee only three times since he has been in office. I think it is our duty to reassure Canadians by holding a debate here.

"I can also say that, since that announcement was made, there have been online campaigns and petitions signed by tens of thousands of Canadians. They are very concerned about this news and about the possibility that their privacy is being violated. Canadians are not alone in this campaign. They have been joined by Amnesty International, Alternative Québec, the Canadian Civil Liberties Association, the Council of Canadians and 10 other civil society groups. OpenMedia is also playing an important role in this situation.

"Thank you for taking the time to carefully consider my request. I hope that we can work together as parliamentarians to respond to Canadians' questions in this regard."

The Speaker: "I thank the hon. member for Terrebonne--Blainville for raising this issue. Although it may be very important to some members, I am not convinced that it merits an emergency debate."

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Secrecy Imposed on Government Employees
Under Threat of Imprisonment

In the midst of more and more details of U.S.-led global espionage and cyber warfare and other wrongdoings coming to light, the Harper government is seeking to expand the scope of the Security of Information Act, passed in 2001 as part of the so-called anti-terrorism legislation implemented shortly after 9/11. The aim is to bar various members of the civil service from ever divulging aspects of their work the government chooses to deem "senstive to national security."

A recent report from Canadian Press states that the prime minister's national security adviser, federal lawyers who work on terrorism cases and intelligence analysts in the Privy Council Office would be forever forbidden from discussing sensitive aspects of their work under proposed new rules. These include past and present employees of nine federal agencies and those who used to work at two now-defunct agencies. This application of the Security Information Act already covers 12,000 current and former federal intelligence officials.

The CP item points out that, "The law forbids discussion of 'special operational information' including past and current confidential sources, targets of intelligence operations, names of spies, military attack plans, and encryption or other means of protecting data." The report continues:

"The penalty for revealing such information is up to 14 years in prison.

"The government says individuals 'permanently bound to secrecy' through special designation are held to a higher level of accountability than others under the secrecy law.

"It means unauthorized disclosures are subject to penalty whether the information is true or not and even if it was obtained after the employee left a sensitive post.

"The new officials forever bound to secrecy would include members of the legal services units of the Canadian Security Intelligence Service, Canada's domestic spy agency, and the Communications Security Establishment, the electronic eavesdropping service.

"It would also cover the little-known Privy Council Office employees of the foreign and defence policy secretariat, the intelligence assessment secretariat, the international assessment staff and the security and intelligence secretariat.

"Others bound by the provisions would be the national security group of Justice Department lawyers, the national security program of the RCMP and the office of the national security adviser to the prime minister.

"Finally, the rules would extend to two dissolved agencies: the office of the inspector general of CSIS -- the watchdog axed last year by the Conservatives, and the office of the security and intelligence co-ordinator of the Privy Council Office.

"The recently published federal proposal says the organizations that make up the security and intelligence community need to 'ensure secrecy and project to others that they have the ability to protect the information entrusted to them.'

"The planned additions would allow the government to 'provide additional assurances to its international partners and allies that special operational information shared with Canada will be protected.'

"The measures would not override a designated employee's right to protection under whistleblowing procedures, the federal notice adds.

"It says there would be 'minimal impact' on the media, 'which should not have access to special operational information without authorization.' [...]

"The database of people bound to secrecy, maintained by CSIS, includes those automatically designated through their employment with a spy service or other listed agency.

"Others are hand-picked by supervisors due to their access to 'special operational information.'

"Past and present employees of the RCMP, CSIS, the CSE and Foreign Affairs already top the list of people from more than two dozen agencies bound by the secrecy provisions.

"The public has until early next month to comment on the new proposal."

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Civil Liberties, Pro-Democracy, Privacy Rights and
Open Internet Groups Call for Answers

A group of organizations focused on civil liberties, pro-democracy, privacy rights, and open access to the Internet have joined together to demand answers and immediate action from the government after it was revealed that a secretive government agency has been spying on the telephone and Internet activities of individuals, including law-abiding Canadians.

The organizations speaking out today include Amnesty International Canada, the BC Civil Liberties Association (BCCLA), the BC Freedom of Information and Privacy Association (BCFIPA), Council of Canadians, International Civil Liberties Monitoring Group, Leadnow, OpenMedia.ca, Privacy & Access Council of Canada, the Rocky Mountain Civil Liberties Association, and the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC). OpenMedia.ca worked with many of these same organizations to host the StopSpying.ca campaign that successfully defeated the government's online spying bill C-30.

The group of organizations is putting the following statement to Defence Minister Peter MacKay and Prime Minister Stephen Harper and is encouraging Canadians to sign on to the statement through an online campaign hosted at: http://SecretSpying.ca

"We deserve to know if our private information is being collected and stored in giant unsecured databases. We call on the government to make public the details of Canadian foreign intelligence agencies' online spying and data sharing activities, including those involving foreign states. We demand an immediate stop to any programs of indiscriminate and arbitrary online spying."


According to online surveillance expert Ron Deibert, CSEC spying gives them the power to "pinpoint not only who you are, but with whom you meet, with what frequency and duration, and at which locations."

"We've already been hearing from angry citizens who are outraged by the government's invasion of their privacy," says OpenMedia.ca Executive Director Steve Anderson. "Hasn't the government learned its lesson for its defeated spying Bill C-30 that Canadians value their privacy? Its time for answers and an immediate end to invasive collection of our sensitive private information without oversight or accountability."

Privacy law expert Tamir Israel said today, "Individuals need to understand the true scope and nature of how Canada's foreign intelligence apparatus is using the broad surveillance powers it has been granted by Parliament. Absent such an understanding, they cannot ensure their rights are secure from excessive and disproportionate surveillance activities."

The groups say Canadians deserve clear answers from the government to a number of important questions:

What are the scope and parameters of CSEC's domestic surveillance activities? Do these approach the indiscriminate scope of the NSA under comparable powers? What is the extent to which Canadians are incidentally or otherwise captured in CSEC's surveillance activities? Specifically, how many individuals, including law-abiding Canadians, have had their information collected as a result of CSEC's surveillance programs? What is the scope of the government's information sharing activities with foreign partners? Does CSEC have the same type of access to NSA portals such as PRISM as its UK counterpart, GCHQ, reportedly has? Will the government restrict CSEC's powers to ensure that the use of these powers is subject to public debate and that individuals can generally be aware of the conditions under which their communications and activities might be surveilled? Will the government curtail the overly broad and indiscriminate powers granted to CSEC in the past decade, so that they can only be used against individuals reasonably suspected of wrongdoing?

Canadians can send the government a clear message to keep our private lives private by signing this petition at: http://SecretSpying.ca

About OpenMedia.ca

OpenMedia.ca is a network of people and organizations working to safeguard the possibilities of the open Internet. We work toward informed and participatory digital policy.

Through campaigns such as DemandChoice.ca, StopTheMeter.ca and StopSpying.ca, OpenMedia.ca has engaged over half-a-million Canadians, and has influenced public policy and federal law.

OpenMedia.ca lead the related StopSpying.ca campaign that defeated the government's online spying Bill C-30. For more see this infographic.

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Surveillance and the Law

A recent item by Professor Michael Geist points out that "revelations about secret surveillance in the United States involving both Internet-based communications and the collection of metadata from all cellphone calls immediately raised questions about the possibility of Canadian involvement or the inclusion of Canadian data. Given the common communication infrastructure and similarities between Canadian and U.S. laws, it seemed likely that Canada was engaged in much of the same activities. Within days, it was reported that Canada has its own metadata surveillance program, with the ministerial approval coming in 2011 from Defence Minister Peter McKay. The government has tried to downplay the public concern by focusing on two safeguards. First, it argues that its secret metadata surveillance program only targets foreign communications. Second, it notes that the data captured is metadata rather than content and therefore does not raise significant privacy issues. Neither response should provide Canadians concerned for their privacy with much comfort. Indeed, the emphasis on these two issues highlights how Canadian surveillance laws have failed to keep pace with current surveillance technologies." Geist continues:

"The suggestion that Canadians are not affected by surveillance targeting foreign communications does not stand up to even mild scrutiny. The same claims are made by other intelligence agencies, with each claiming that they limit surveillance to foreign targets. However, information sharing between intelligence services is common, providing a backdoor mechanism to access information.

"The prospect that U.S. surveillance becomes a key source for Canadian agencies, while Canadian surveillance supports U.S. agencies, does not strike anyone as particularly far-fetched. Wayne Easter, a former government minister with responsibility for CSIS, has said that such sharing is common. In other words, relying on the domestic-foreign distinction is necessary for legal compliance, but does not provide much assurance to Canadians that they are not being tracked.

"Moreover, given the commingling of data through integrated communications networks and 'borderless' Internet services residing on servers around the world, distinguishing between Canadian and foreign data seems like an outdated and increasingly impossible task. In fact, the reported decision to stop the Canadian surveillance program several years ago arose in part due to fears of overbroad surveillance. In the current communications environment, tracking Canadians seems inevitable and makes claims that such domestic surveillance is 'inadvertent' increasingly implausible.

"Assurances that metadata surveillance is less invasive than tracking the content of telephone calls or Internet usage also ring hollow. Metadata can include geo-location information, call duration, call participants, and Internet protocol addresses. While officials suggest that this information is not sensitive, there are many studies that have concluded otherwise. These studies have found that metadata alone can be used to identify specific persons, reveal locational data, or even disclose important medical and business information.

"The problem is that surveillance technologies (including the ability to data mine massive amounts of information) have moved far beyond laws that were crafted for a much different world. The geographic or content limitations placed on surveillance activities by organizations such as CSEC may have been effective years ago when such activities were largely confined to specific locations and the computing power needed to mine metadata was not readily available.

"That is clearly no longer the case. The law seeks to differentiate surveillance based on geography, but there is often no real difference with today's technology. Moreover, the value of metadata is sometimes greater than the actual content of telephone conversations. The current law provides few privacy protections and ineffective oversight in the face of intelligence agencies investing billions of dollars in surveillance technologies and telecommunications and Internet companies providing assistance that remains subject to court-imposed gag orders.

"The legal framework leaves Canadians with 20th century protections in a world of 21st century surveillance. If we genuinely believe in preserving some privacy in an environment where everyone's cellphone call is tracked, we must be open to significant legislative reforms and increased oversight that better reflects the realities of modern-day communications surveillance."

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at mgeist@uottawa.ca. This item was posted June 18 on www.michaelgeist.ca.

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