CHAPTER 3: SETTING A GLOBAL STANDARD
“The next two decades are going to be privacy. I'm talking about the Internet. I'm talking about cell phones. I'm talking about health records and who's gay and who's not. And moreover, in a country born on the will to be free, what could be more fundamental than this?” - a prescient quote from the character Sam Seaborn, in an episode of The West Wing first broadcast in November 1999.
The international context
As this report has outlined, there is much that Canada can do to restore its citizens’ privacy rights here at home. These measures are important to restore the democratic balance between the rights of citizens and the state. If implemented, they would give every Canadian the confidence that they are not being watched by their own government - at least not without a warrant issued by an open court based on due process and strict objective criteria.
However these measures only take us so far: What about when other governments spy on Canadians? Or when Canada’s government spies on people overseas?
After all, Canadians are not alone when it comes to wrestling with these crucial privacy issues. People the whole world over are increasingly being subjected to surveillance from a range of governments, often including their own.
In the U.S., the NSA is conducting extensive warrantless spying on American citizens without their knowledge or consent. The Snowden documents have revealed how the NSA has the ability to monitor telephone calls, emails, and private online information.163 Notably, through its PRISM program, the NSA collects vast amounts of data from popular online services owned by Google, Apple, Yahoo, and other major tech companies.
Britain’s GCHQ has been revealed to be tapping the global Internet backbone, collecting vast amounts of private information which it then shares with its Five Eyes partners.164 GCHQ also partnered with the NSA to steal encryption keys that protect private phone communications by hacking Gemalto, the world’s largest manufacturer of SIM cards.165 Experts say that these stolen keys enable GCHQ and the NSA to spy on phone communications without requiring approval from telecom companies or foreign governments.
Even far-flung corners of the earth are not immune to government mass surveillance activities. The small southeast Asian nation of East Timor took Australia to the International Court of Justice, where it complained that ASIO (Australia’s CSE) was using its own near-limitless surveillance powers to spy on East Timor’s legal representatives in an ongoing legal dispute over huge oil and gas reserves in the Timor Sea.166 The resulting ICJ order prohibited Australia from spying on East Timor for any purpose relating to any ICJ disputes between the two.
The Guardian and The Intercept have also reported that New Zealand spies indiscriminately on many small island nations in the South Pacific, and that it shares this information with the U.S. and its Five Eyes allies.167 Victims of New Zealand spying include Tonga, Fiji, Samoa, and the Cook Islands. A separate New Zealand spy program even targeted an anti-corruption campaigner in the Solomon Islands.168
So while there is much that needs to be done in terms of Canada putting its own house in order, surveillance is clearly also a global challenge that requires a global solution.
Here again Canada has an important role to play. Canada can become a global leader in reining in excessive digital surveillance practices. By leading by example, and by working with other governments and the United Nations, Canada can work to set a new global standard for privacy protection in a digital age.
How Canada can help set a new global standard:
1. Endorse and champion international human rights privacy principles:
In 2013, following over a year of consultation, dozens of leading international privacy experts, human rights lawyers, and open Internet advocates published the International Principles on the Application of Human Rights to Communications Surveillance169 (commonly known as the Necessary and Proportionate Principles). The Principles set out what is required for governments around the world to bring their surveillance activities into line with international human rights law.
They amount to a comprehensive set of safeguards to protect the privacy of people around the world, wherever they live. If implemented they would put a stop to all programs of suspicionless mass surveillance, including the bulk collection of metadata. The Principles have been signed by over 470 organizations and experts, 350,000 people, and leading decision-makers in Canada, the U.S., continental Europe, and the U.K.170
Canada should ensure that all its domestic and international surveillance activities comply with these principles. Canada should also champion these common sense safeguards at the United Nations and other international forums. Canada should not share personal information obtained via surveillance with nations that do not respect these basic global human rights safeguards.
2. Attempt to reform the Five Eyes spy alliance:
The decades-old surveillance alliance between the U.S., U.K., Canada, Australia, and New Zealand needs to be reformed to bring its activities into line with international human rights principles. Over the decades, the Five Eyes have evolved into what Edward Snowden has described as “some sort of a supranational intelligence organization that doesn’t answer to the laws of its own countries.”171
Notably, members of the Five Eyes have been exposed as deliberately circumventing restrictions on domestic surveillance by spying on each other’s citizens, then sharing the information. Documents have revealed, for example, that the U.K.’s GCHQ is tapping trans-Atlantic fibre-optic cables and passing the information to the U.S. NSA.172 GCHQ also struck a secret deal allowing the NSA to analyze and store sensitive metadata on British citizens.173 The NSA reciprocates by circumventing British law to share information about British citizens directly with GCHQ.174
Internet Voice: “We need to close the recently widened loophole that allows our spy agencies to ask other spy agencies to spy on Canadians on their behalf.” - Evan P.
Nor are these abuses restricted to the U.S. and U.K. Australia’s intelligence agency also offered to share information it had collected about Australian citizens with the NSA, including bulk, unredacted metadata.175 Here in Canada, federal court judge Richard Mosley rebuked CSIS and the CSE for outsourcing surveillance of Canadians overseas to its Five Eyes partners.176
Canada should make future cooperation with the Five Eyes contingent on their compliance with human rights principles, including those set out in the Necessary and Proportionate Principles. At a minimum that means ending all programs of suspicionless online spying, including the bulk collection of metadata.
3. Enact new safeguards on data sharing with foreign governments:
Canada should enact legislative protections to prevent foreign governments from accessing Canadians' personal information without due process, and to prevent Canadian government entities from accessing Canadians' data from foreign state entities without due process.
The Privacy Act should also be amended in line with the Privacy Commissioner’s January 2014 recommendation to "strengthen the provision relating to the exchange of personal information with foreign authorities to promote privacy”. The amendment should be specifically tailored to address government surveillance, national security, and law enforcement activities.
4. Work through the U.N. and other global institutions for international privacy safeguards:
Moves toward stronger privacy are already afoot in many key global institutions. The U.N. General Assembly, led by Brazil and Germany, has explicitly recognised that the human right to privacy extends to online activities. In a resolution adopted in late 2013, the assembly called on member states “To respect and protect the right to privacy, including in the context of digital communication”.
"…without the necessary checks, we risk turning into Orwellian states, where every step of every citizen is being monitored and recorded in order to prevent any conceivable crime," Germany's UN Ambassador Harald Braun, addressing the UN General Assembly178
Unfortunately, under pressure from the Five Eyes, including from Canada, the General Assembly has so far failed to support recommendations from the U.N. High Commissioner for Human Rights that metadata collection should cease, and that surveillance should only be conducted when necessary, legitimate, and proportionate.
Other important global institutions are also wrestling with these issues. The OAS Special Rapporteur for Freedom of Expression has declared that limits on surveillance powers are “urgently necessary”.179 Latin American institutions such as Mercosur and ALBA have declared surveillance to be a threat to their sovereignty, democracy, and peace.180 Members of the G8,181 G20,182 and Commonwealth183 have all been outraged at revelations that the Five Eyes targeted their summits.
Instead of defending surveillance practices that undermine people’s basic rights, Canadians deserve a government that stands up for privacy rights on the international stage. Canada should throw its weight behind efforts in global institutions to develop strong privacy safeguards to protect human rights in a digital age.
Canada is, by and large, a well-respected member of the international community, a middleweight power that wields an influential and often outsize role at international institutions including the United Nations, the G20, the G8, the OECD, APEC, the Commonwealth, the OAS, and La Francophonie. Canada is therefore well positioned to play a leadership role in developing stronger global privacy safeguards.
 The Guardian: NSA performed warrantless search on Americans’ calls and emails. Source: http://www.theguardian.com/world/2014/apr/01/nsa-surveillance-loophole-americans-data
 The Guardian: GCHQ taps fibre-optic cables for secret access to world’s communications. Source: http://www.theguardian.com/uk/2013/jun/21/gchq-cables-secret-world-communications-nsa
 Wired U.K.: GCHQ and NSA hacked SIMs to spy on billions of phones. Source: http://www.wired.co.uk/news/archive/2015-02/20/gchq-sim-encryption-keys
 Sydney Morning Herald: Australia ordered to cease spying on East Timor by International Court of Justice. Source: http://www.smh.com.au/federal-politics/political-news/australia-ordered-to-cease-spying-on-east-timor-by-international-court-of-justice-20140303-hvfya.html
 The Guardian: New Zealand spying on Pacific allies for ‘Five Eyes’ and NSA, Snowden files show. Source: http://www.theguardian.com/us-news/2015/mar/05/new-zealand-spying-on-pacific-allies-for-five-eyes-and-nsa-snowden-files-show
 The Intercept: New Zealand used NSA system to target officials, anti-corruption campaigner. Source: https://firstlook.org/theintercept/2015/03/14/new-zealand-xkeyscore-solomon-islands-nsa-targets/
 A full copy of the Principles can be found at https://necessaryandproportionate.org/
 Electronic Frontier Foundation: 13 Principles Week of Action - A Principled Fight Against Surveillance. Source: https://www.eff.org/deeplinks/2014/09/13-principles-week-action-principled-fight-against-surveillance
 Tagesschau.de: Transcript of interview with Edward Snowden. Source: https://www.tagesschau.de/snowden-interview-englisch100.pdf
 Reuters: British spy agency taps cables, shares with U.S. NSA. Source: http://uk.reuters.com/article/2013/06/21/uk-usa-security-britain-idUKBRE95K10620130621
 The Guardian: U.S. and U.K. struck secret deal to allow NSA to ‘unmask’ Britons’ personal data. Source: http://www.theguardian.com/world/2013/nov/20/us-uk-secret-deal-surveillance-personal-data
 The Guardian: NSA offers intelligence to British counterparts to skirt U.K. law. Source: http://www.theguardian.com/politics/2013/jun/10/nsa-offers-intelligence-british-counterparts-blunkett
 The Guardian: Revealed: Australian spy agency offered to share data about ordinary citizens. Source: http://www.theguardian.com/world/2013/dec/02/revealed-australian-spy-agency-offered-to-share-data-about-ordinary-citizens
 National Post: Court rebukes CSIS for secretly asking international allies to spy on Canadian terror suspects travelling abroad. Source: http://news.nationalpost.com/2013/11/25/court-rebukes-csis-for-secretly-asking-international-allies-to-spy-on-canadian-terror-suspects/
 Office of the Privacy Commissioner: Checks and Controls: Reinforcing Privacy Protection and Oversight for the Canadian Intelligence Community in an Era of Cyber-Surveillance. Source: https://www.priv.gc.ca/information/sr-rs/201314/sr_cic_e.asp
 Bloomberg: UN Expands Anti-Spying Resolution to Include Metadata Collection. Source: http://www.bloomberg.com/news/articles/2014-11-25/un-expands-anti-spying-resolution-to-include-metadata-collection
 Organization of American States: Joint Statement. Source: http://www.oas.org/en/iachr/expression/showarticle.asp?artID=927&lID=1
 World Wide Web Foundation: Latin America: A beacon of hope in the fight against surveillance. Source: http://webfoundation.org/2014/12/latin-america-a-beacon-of-hope-in-the-fight-against-surveillance/
 The Guardian: Canada ‘allowed NSA to spy on G8 and G20 summits’. Source: http://www.theguardian.com/world/2013/nov/28/canada-nsa-spy-g8-g20-summits
 Toronto Star: British intelligence spied on G20 officials in London, says newspaper. Source: http://www.thestar.com/news/world/2013/06/16/british_intelligence_spied_on_g20_officials_in_london_says_newspaper.html
 The Guardian: U.K. intelligence agencies planned to spy on Commonwealth summit delegates. Source: http://www.theguardian.com/world/2013/jun/16/uk-intelligence-agencies-spy-commonwealth-delegates