When it comes to policing and national security, far too often Canadians are asked to let fear trump their rights.
Recently, the front page of the Toronto Star featured the headline, “Encryption creating a barrier for police ...,” potentially convincing some readers that the technology’s only purpose is to aid criminals. Rarely do we see headlines such as, “Encryption protects thousands of Canadians’ credit card information,” or “Encryption enables secure communications for every Canadian.” or even the aspirational, “Canada leads the way in cybersecurity for its citizens.”
Increasingly, when we hear about encryption in the media, or from public safety officials, it’s presented as a danger — something that prevents those whose job it is to keep us safe from fulfilling their role. However, in the vast majority of transactions online by ordinary, law-abiding citizens, encryption is a good thing that makes personal, sensitive data harder to capture and decipher. Indeed, if more data were stored in encrypted form, sensational breaches of privacy — like the one that drove some Ashley Madison users to suicide — could be avoided.
Acknowledging that encryption can be a good thing for society doesn’t erase police concerns about data access; it contextualizes them. We at the Canadian Civil Liberties Association (CCLA) have long been supporters of warrants, the process by which police can go before a judge to demonstrate that their need to intercept a suspect’s private communications is reasonable and proportionate.
While we understand that warrants aren’t helpful if data can’t be decrypted, reports indicate police now have the tools, and are working with technology companies, to gain access to even the most complex of encrypted data. For example, as we learned from the Project Clemenza investigation, police can now decrypt BlackBerry communications and are making extensive use of Stingray technology, which allows for the mass interception of cellphone data.
We also know the FBI has developed a hack to intercept messages on Tor networks, which are designed for secure, private communications. Even the infamous Apple v. FBI case ended with the FBI getting what it wanted.
An increasing lack of public trust, that invasive technologies will be used proportionately by security and law enforcement agencies, is attributed to an excessive attention to privacy rights, encouraged by privacy advocates. What we hear from concerned citizens, however, is not that they prioritize privacy over all else, not that they don’t value security, and not that they don’t appreciate the need for police to use new technologies to deal with new threats.
Rather, they tell us, there is way too much secrecy and way too little accountability surrounding the ways these technologies are used. This is not an invention concocted by privacy advocates, such as CCLA; it’s the result of an increasing disjunction between the stories people hear and their expectations of appropriate conduct in the name of public safety.
For example, when the Communications Security Establishment used information from the free internet service at a major Canadian airport to track the wireless devices of thousands of ordinary airline passengers for days after they left the terminal, many Canadians felt intuitively it was intrusive and wondered if it was illegal. But it wasn’t. That’s the kind of situation that erodes the trust that is fundamentally necessary for the social license law enforcement needs to function effectively.
Another example is the aforementioned Stingray technology, which apparently has been quietly used in Canada for a number of years. Police maintain that secrecy gives them the edge they need against increasingly sophisticated criminals. However, Canadians have legitimate concerns that when a powerful technology is used in secret, it’s impossible to ascertain whether it’s being used wisely and proportionately, and if necessary safeguards are in place.
While it would clearly be more convenient for police to have instant access to all the information they want it wouldn’t ensure crimes are investigated justly, or with respect for the innocent bystanders whose data gets swept up, and that matters too.
A recent survey on Canadian identity, published in October by the national statistics agency found that the Charter of Rights and Freedoms was chosen as Canada’s most important national symbol, with 93 per cent support.
In other words, Canadians consider rights protection to be core to their sense of who we are as a people. Thus, it’s time to stop looking at rights, the technologies that protect them, and people who argue for them, as barriers.
Indeed, it’s time we talked about public safety, new technologies, and reasonable expectations in a way that rebuilds trust and provides a solid foundation for a Canada in which our persons, property and rights all have strong and effective protection.
Dr. Brenda McPhail is the director of the privacy, technology and surveillance project at the Canadian Civil Liberties Association.