UNDERSTANDING PRIVACY: NEW LAWS, NEW CHALLENGES March 11-12, 2002 Fairmont Hotel Vancouver Vancouver, BC

1. UNDERSTANDING PRIVACY: NEW LAWS, NEW CHALLENGESMarch 11-12, 2002Fairmont Hotel VancouverVancouver, BC

2. Privacy vs. Security: How Much Privacy can We Expect After 9/11? Richard S. Rosenberg Department of Computer Science University of British Columbia Vancouver, BC V6T 1Z4 rosen@cs.ubc.ca

3. “The struggle to establish civil liberties against the backdrop of these security threats, while difficult, promises to build bulwarks of liberty that can endure the fears and frenzy of sudden danger—bulwarks to help guarantee that a nation fighting for its survival does not sacrifice those national values that make the fight worthwhile.” - Justice W. J. Brennan Jr., 1987

4. OUTLINE • BILL C-36, ANTI-TERRORIST ACT • AMENDMENTS to BILL C-36 • BILLS C-42 and C-44 • USA PATRIOT ACT • CONCLUSIONS

5. BILL C-36, ANTI- TERRORIST ACT • Measures Affecting Privacy and Freedom of Information • The Attorney General of Canada may at any time personally issue a certificate that prohibits the disclosure of information for the purpose of protecting international relations or national defence or security.

6. Continued: • The Bill also allows the Attorney General to personally issue certificates forbidding the disclosure of information and exempts whole classes of information from the Access to Information Act. - Loukidelis, 2001

7. Continued: • It is simply not acceptable, in my view, for provisions that would strip Canadians of all legally assured privacy rights to be rushed through Parliament under a cone of silence, without very specific justification and debate of their merits. Nor does it suffice to provide vague assurances that the enormous discretionary powers in question would never actually be used. We live in a country governed by the rule of law, not in a place where the authorities are endowed with unfettered power that the people must hope will only be used kindly and well. - Radwanski, 2001

8. AMENDMENTS to BILL C-36 • Re the Issuance of Certificates: • I am proposing that the certificates have a maximum lifespan of 15 years, unless re-issued. After its expiry, the effect of the certificate would no longer apply and the information to which it applied would be subject to the normal provisions of the law concerning disclosure or non-disclosure.

9. Continued: • Further, I am proposing that the issuance of a certificate should be reviewable by a judge of the Federal Court of Appeal. • Finally, each certificate would now be published in the Canada Gazette.

10. Review Mechanisms • Significant powers under this Bill are subject to judicial supervision and, in many cases, this is in addition to explicit ministerial review and supervision powers. As well, the provisions in the Bill will be subject to a full review by Parliament within three years.

11. Continued: • This provision would require the Attorney General of Canada, and those of the provinces, to report publicly once a year on the exercise of the C-36 powers of investigative hearings that took place under their jurisdiction. [also on the powers of preventive arrest]

12. Sunset Clause • [T]he Government will also propose that these two measures be subject to a sunset clause under which they would expire after five years. • This expiry would be subject, however, to the ability of Parliament to extend the provisions, on resolutions adopted by a majority of each Chamber, for additional periods of time; but no period may ever exceed five years. - McLellan, 2001

13. RELATED BILLS C-42 and C-44 • Bill C-42, The Public Safety Act • . . . imposes fines and jail terms for manufacturing, stockpiling, or proliferating biological weapons or toxins, - surely an obvious oversight in existing criminal law – strengthens existing aviation security, permits designated geographic areas to fall under military regulation, and more.

14. Continued: • Bill C-44, The Public Safety Act • … an operator of an aircraft departing from Canada or of a Canadian aircraft departing from any place outside Canada may, in accordance with the regulations, provide to a competent authority in a foreign state any information that is in its control relating to persons on board or expected to be on board the aircraft and that is required by the laws of the foreign state.

15. Continued: • The Act explicitly notes that this regulation is an exception to PIPEDA, which requires permission of the affected party before personal information can be released to a third party.

16. USA PATRIOT ACT of 2001 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism

17. Impact Of USA PATRIOT Act on Online Activities • Expanded Surveillance With Reduced Checks and Balances. USAPA expands all four traditional tools of surveillance -- wiretaps, search warrants, pen/trap orders and subpoenas. Their counterparts under the Foreign Intelligence Surveillance Act (FISA) that allow spying in the U.S. by foreign intelligence agencies have similarly been expanded.

18. Continued: • Be careful what you put in that Google search. The government may now spy on web surfing of innocent Americans, including terms entered into search engines, by merely telling a judge anywhere in the U.S. that the spying could lead to information that is "relevant" to an ongoing criminal investigation. The person spied on does not have to be the target of the investigation.

19. Continued: • Nationwide roving wiretaps. FBI and CIA can now go from phone to phone, computer to computer without demonstrating that each is even being used by a suspect or target of an order. The government may now serve a single wiretap, FISA wiretap or pen/trap order on any person or entity nationwide, regardless of whether that person or entity is named in the order.

20. Continued: • ISPs hand over more user information. The law makes two changes to increase how much information the government may obtain about users from their ISPs or others who handle or store their online communications. First it allows ISPs to voluntarily hand over all "non-content" information to law enforcement with no need for any court order or subpoena.Second, it expands the records that the government may seek with a simple subpoena (no court review required)

21. Other Actions Permitted by the Act • Allows government agents to collect undefined new information about Web browsing and e-mail without meaningful judicial review; • Allow Internet Service Providers, universities, network administrators to authorize surveillance of "computer trespassers" without a judicial order;

22. Continued: • Overrides existing state and federal privacy laws, allowing FBI to compel disclosure of any kind of records, including sensitive medical, educational and library borrowing records, upon the mere claim that they are connected with an intelligence investigation;

23. Continued: • Allows law enforcement agencies to search homes and offices without notifying the owner for days or weeks after, not only in terrorism cases, but in all cases - the so-called "sneak and peek" authority; • Allows FBI to share with the CIA information collected in the name of a grand jury, thereby giving the CIA the domestic subpoena powers it was never supposed to have;

24. CONCLUSIONS • The events of September 11 have served to initiate a grand assault on civil liberties presumably in order to enable governments, more specifically law enforcement officials and intelligence agencies, to protect us and our institutions from the all too powerful forces of international terrorism.

25. Continued: • In no sense do I wish to be seen as trivializing the tragic loss of lives that occurred on that by now memorable day, but the loss of vitally important civil liberties as a result, with a lengthy fixed period for review and retraction does not seem an appropriate way to recognize that tragedy.

26. Finally, • What are we as a society if we do not value above all our exercise of and commitment to fundamental democratic principles? The challenge is to defend these principles, publicly and vigorously, now and into the foreseeable future. • We owe our children and our country nothing less.

27. Addendum • The US government has already gone too far in displacing the constitutional and legal rights that we have evolved as our own national standard. Of course we are frightened of the power of terrorists to kill again, perhaps on an even greater scale.

28. Continued: • But what our enemies mainly hope to achieve through their terror is the destruction of the values that they hate and we cherish. We must protect those values as well as we can, even as we fight them. That is difficult: it requires discrimination, imagination, and candour. But it is what patriotism now demands. • Ronald Dworkin (2002) is Professor of Law and Philosophy at New York University and Quain Professor of Jurisprudence at University College, London.