Category Archives: CCLA

Encryption actually protects law-abiding Canadian citizens - Toronto Star 20160710

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.

CCLA - Canadians' right to privacy in cell phone data confirmed by Ontario court - 20160115

CCLA - Canadians' right to privacy in cell phone data confirmed by Ontario court - 20160115

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In a notable win yesterday for privacy, the Ontario Superior Court ruled that police requests to Rogers and Telus for the personal information of over 40,000 subscribers was a violation of their Charter rights.

In April 2014, Peel Regional Police, as part of an investigation into a series of jewelry store robberies, obtained a production order for a “tower dump”—it asked Rogers and Telus to turn over customer information from all cellphones that accessed every cell tower near to 21 different municipal addresses. The two companies estimated that this would include the personal information of at least 9000 Telus subscribers, and 34,000 Rogers’ subscribers, including information about call recipients and subscriber billing information. The orders also did not specify how this customer information about thousands of innocent people would be safeguarded.

The two companies felt this was excessive, amounting to a violation of section 8 of the Charter that protects against unreasonable search and seizure; in deciding to hear the case, Justice John Sproat of the Ontario Superior Court noted that individual subscribers lack the means to raise this issue, and that “The privacy rights of the tens of thousands of cell phone users are of obvious importance.”

Today’s decision is significant for a number of reasons:

  1. The decision confirms that telecommunications companies have a contractual obligation to keep subscriber information confidential. They must protect their customers’ information from undue intrusion.
  2. The decision explicitly declares that “Canadians have a reasonable expectation of privacy in their cell phone records.”
  3. Overly broad production orders for cell phone subscriber information are declared, clearly and pointedly, to be unconstitutional.

Justice Sproat includes a series of guidelines for police detailing the information that should be included in the information to obtain a production order. This includes demonstrating that the principles of incrementalism and minimal intrusion have been duly considered in making the request; explaining why all information requested—locations, towers, dates, times, and types of records– is relevant to the investigation; providing details that might permit the search to be narrowed; limiting requests when feasible to ask for a report on the specified data rather than all of the underlying data, or, if this is insufficient, justifying any need for underlying data; and confirming that the data can be meaningfully reviewed.

The Justice declined to provide guidance on appropriate safeguards for retention, storage and deletion of data obtained from these production orders, suggesting that this would require legislation and that it should be left to parliament to enhance existing privacy laws. He further declined to limit police use of tower dumps, again noting a need for legislation before limiting investigative practice, and citing the example of s. 186(1)(b) of the Criminal Code as an example of where legislation explicitly limits the ability to intercept private communications by imposing a high standard of investigative necessity for the practice.

This decision is an important counter to the increasingly popular belief that more information is always better in investigative contexts, be they law enforcement, national security, or even in relation to the private sector’s collection and use of personal information. To the contrary, CCLA has always maintained that information collection should be proportionate to the purpose, and undertaken in a way to minimally impair privacy. This judgement comes down soundly in favour of these important privacy principles.

Canadian Civil Liberties Association welcomes concluding observations for Canada by UN Human Rights Committee - 20150723

Canadian Civil Liberties Association welcomes concluding observations for Canada by UN Human Rights Committee - 20150723

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This morning, the UN Human Rights Committee — the independent treaty body that monitors state implementation of the International Covenant on Civil and Political Rights (ICCPR) — released its concluding observations on Canada. CCLA had provided written submissions to the Committee in advance of the hearings. On July 7th and 8th, CCLA Executive Director and General Counsel Sukanya Pillay (accompanied by Brenda McPhail, CCLA Director, Privacy, Technology and Surveillance Project) made oral submissions in Geneva about our specific concerns.

“CCLA welcomes the observations of the UN Human Rights Committee,” said Pillay. “We presented it with serious concerns, including the range of problems with Bill C-51, such as accountability deficits, excessive and unchecked CSIS powers, information sharing without caveats, and no fly lists without due process. We also called for accountability for excessive use of police force during the G20 and Montreal student protests and for a national inquiry into missing and murdered Aboriginal women and girls. Further, we came out strongly on ending the overuse of segregation and solitary confinement in Canadian prisons, particularly in the case of mentally ill individuals.”

She added, “There are serious human rights concerns at play today in Canada and they must be urgently addressed.” 

CCLA urged the Committee to consider Canada’s recent passing of Bill C-51 and its impact on fundamental human rights, including due process; fundamental justice; liberty and security of person; privacy and the dangers of mistaken information sharing and mass surveillance; and failures of oversight and review regarding national security agencies.

CCLA also provided argument on the following:

  • Recent amendments to the Immigration and Refugee Protection Act and contraventions of the principle of non-refoulement (not to remove an asylum-seeker or refugee and send them to a place where they are at risk of being harmed);
  • The need to have a national inquiry into murdered and disappeared Aboriginal women;
  • The overrepresentation of Aboriginal men and women in the criminal justice system;
  • The need to implement the recommendations of the Truth and Reconciliation Commission;
  • The need to ensure that policies promote and do not obstruct equality between men and women;
  • The use of force by police, particularly during the 2012 and 2015 Quebec protests, and the kettling and arrests of the 2010 Toronto G20 protesters;
  • Constraints upon protest by indigenous groups and environmental groups;
  • Restrictions on protest and the shrinking of public space and impact upon freedoms of expression and association;
  • Concerns about overcrowding in prisons, the overuse of administrative segregation of prisoners, the continued use of segregation and solitary confinement in federal prisons, and, in particular, CCLA argued against the use of segregation for persons with mental health issues;
  • Guidelines regarding the use of CEWs (conducted energy weapons, such as tasers) by police and CCLA’s call for a higher threshold for use;
  • Concerns about Canada’s failure to comply with interim measures and decisions of the Committee pursuant to the Optional Protocol’s Individual Complaints Process of the Covenant.

Note, these issues are actively being pursued by CCLA within Canada. In addition to our advocacy on all of the issues above, CCLA has:

  1. Launched a constitutional challenge of Bill C-51 (Anti-terrorism Act 2015);
  2. Launched a constitutional challenge of legislative provisions which permit solitary confinement/segregation in federal prisons;
  3. Launched a constitutional challenge to federal privacy law which permits the private sector to unlawfully provide personal identifying information to Government, and
  4. Taken up the cause of representing someone who has submitted an individual complaint to the Committee arguing against deportation because he was born and raised and has lived his entire life in Canada and considers it his own country.

In issuing its concluding observations this morning, the UN Human Rights Committee has made recommendations that closely align with CCLA’s recommendations. In particular, the Committee has called upon Canada to:

  • Give full effect to the Committee’s views pursuant to the Optional Protocol and in keeping with General Comment 33 (2009);
  • Ensure gender equality between men and women, particularly with respect to pay gaps;
  • Conduct a national inquiry into murdered and disappeared Aboriginal women and girls and into the root causes for violence;
  • To amend C-51 to make it compliant with the ICCPR and not to undermine human rights — particular comment was paid to CCLA’s submitted concerns, including new CSIS warrant provisions; lack of oversight or review mechanisms, resulting in accountability failures for national security agencies; mass surveillance and privacy rights; ensuring that the new Security of Canada Information Sharing Act does not result in further human rights abuses through information sharing errors; and calling on Canada to ensure effective due process regarding the No Fly List;
  • Detention of refugees and migrants should be a measure of last resort — health care services should be provided and the principle of non-refoulement should be upheld; in particular, sections of the IRPA which result in refoulement and proposed legislation including Bill 60 which would threaten refoulement should be amended;
  • Reduce overcrowding in prisons, minimize the use of administrative segregation in prisons and use disciplinary segregation only as a measure of last resort; and avoid segregation for individuals with mental health issues;
  • Restore the state’s commitment to principles of freedom of association, assembly, and expression by supporting these rights; removing unnecessary restrictions, and engaging in dialogue with civil society and indigenous groups;
  • Excessive use of force by police during protests must be promptly and impartially investigated, and violators must be prosecuted and punished with appropriate penalties
  • Implement the recommendations of the Truth and Reconciliation Commission.

Additionally, the Committee made important recommendations, which CCLA supports, regarding Canada’s requirement to ensure Canadian businesses do not commit human rights abuses abroad, and that Canada must consult with indigenous groups and work to ensure their land title rights are upheld.

>> View the Committee’s full concluding observations

>> View CCLA’s shadow report to the Committee

>> View Sukanya Pillay’s oral remarks to the Committee