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«Compiled and edited by Simon Davies June 2014 A Crisis of accountability 2 Contents Contents Acknowledgments ...»

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[1] Petrobras foi alvo de espionagem de agência dos EUA, aponta documento, in http://g1.globo.com/politica/noticia/2013/09/petrobras-foi-alvode-espionagem-de-agencia-dos-eua-aponta-documento.html [2] Documentos da NSA apontam Dilma Rousseff como alvo de espionagem, in http://g1.globo.com/politica/noticia/2013/09/documentos-da-nsa-apontamdilma-rousseff-como-alvo-de-espionagem.html [3] Dilma cancela viagem aos EUA, in http://politica.estadao.com.br/noticias/geral,dilma-cancela-viagem-aoseua,1075730 [4] CPI da Espionagem, in A Crisis of accountability 21 http://www.senado.gov.br/atividade/comissoes/comissao.asp?origem=&com= 1682 [5] PF quer ouvir as empresas americanas sobre espionagem - notícias em Mundo", in http://g1.globo.com/mundo/noticia/2013/10/pf-quer-ouvirempresas-americanas-sobre-espionagem.html [6] Dilma speech at UNGA, in http://gadebate.un.org/68/brazil [7] http://antivigilancia.tk/wiki/boletim_antivigilancia/9 [8] http://netmundial.br/about/ [9] http://netmundial.br/wp-content/uploads/2014/04/NETmundialMultistakeholder-Document.pdf [10] http://www.ohchr.org/EN/Issues/DigitalAge/Pages/DigitalAgeIndex.aspx [11] Relatório Final CPI Espionagem, in http://www.senado.leg.br/atividade/materia/getPDF.asp?t=148016&tp=1 [12] Brasil está muito exposto à espionagem, aponta relatório, in http://www12.senado.gov.br/noticias/materias/2014/04/09/brasil-esta-muitoexposto-a-espionagem-aponta-relatorio [13] Motherboard - The FBI Is Training Brazil's New Tech-Savvy Riot Police", in http://motherboard.vice.com/read/the-fbi-is-trainingbrazilsnew-tech-savvy-riot-police / http://rt.com/news/brazil2014-us-military-robotshttp://www1.folha.uol.com.br/mundo/2014/02/1414398-detencao-dedavid-miranda-em-aeroporto-de-londres-foi-legal-diz-justica-britanica.shtml [15] https://secure.avaaz.org/po/petition/Asilo_ja_para_o_Inimigo_Publico_Numer o_1_dos_EUA/ [16] "Leia íntegra da carta de Snowden ao Brasil - 17/12/2013 - Mundo Folha de S.Paulo", in http://www1.folha.uol.com.br/mundo/2013/12/1386291leia-integra-da-carta-de-snowden-ao-brasil.shtml [17] http://g1.globo.com/fantastico/noticia/2014/06/se-o-brasil-me-oferecerasilo-aceito-diz-edward-snowden.html [18] http://noticias.uol.com.br/internacional/ultimas-noticias/2013/12/18/eume-dou-o-direito-de-nao-me-manifestar-sobre-snowden-diz-dilma.htm http://gizmodo.uol.com.br/brasil-nega-asilo-edward-snowden/ Correspondents: Paulo Rená, Joana Varon, John Razen, Bruna Castanheira A Crisis of accountability 22 Canada Snowden’s revelations have implicated Canada’s foreign intelligence signals agency

-- the Communications Security Establishment Canada (CSEC) -- in expansive domestic and foreign surveillance initiatives. To date, however, the Snowden effect has led to few tangible or significant reforms designed to remedy problematic surveillance practices exposed by the Snowden revelations. The most significant responses have included civil society and media commentary, some parliamentary action in the form of criticism, fact-finding activities and reform efforts, and early judicial and quasi-judicial interventions. These collective efforts have dovetailed with (and enhanced) previous efforts at reform of Canada’s foreign intelligence and domestic surveillance regime. While the net result has led to a greater understanding of CSEC’s activities and objectives, there has been minimal concrete movement towards reform aside from some early judicial proceedings.

Canadian media have received and published several Snowden documents implicating CSEC. These publications have been supplemented by domestic investigative media efforts. CSEC has been controversially implicated in surveillance of the Brazilian Ministry which grants resource exploitation contracts, [1] in undermining of international security standards, [2] in aiding five eyes partners to spy on political allies during G8 and G20 meetings, [3] and in using CSEC’s metadata reserves to map individual movements and infrastructure in Canada by monitoring public wifi networks. [4] Canadian media has also documented the dramatic growth in CSEC’s budget in recent years, as well as its close financial links to foreign agencies such as the U.S. National Security Agency. [5] General concern over CSEC has led to calls for reform of Canada’s foreign intelligence surveillance apparatus by a number of major Canadian newspapers. [6] It should be noted that while the media response has been significant by historical standards, it has largely remained driven by Canadian-specific revelations.

In response to the Snowden disclosures, Canadian civil society and academics have worked to raise awareness of state surveillance. This has included education campaigns and online actions. Notably, the Protect Our Privacy Coalition -comprised of over 50 major organizations and two-dozen leading academics -launched an online action calling on Members of Parliament to rein in CSEC's more intrusive activities as part of an internatoinal day of action. [7] Academics have convened workshops and high profile debates, [8] and publicly explained the significance of state surveillance online and through media. One workshop launched A Crisis of accountability 23 a book on surveillance in Canada [9] and generated the Ottawa Statement on Mass Surveillance. [10] Additional efforts from researchers at the University of Toronto have tried to ascertain how long Internet service providers collect, retain, and handle subscriber data, as well as data routing practices, [11] and to pressure telecommunications companies into improving their transparency regarding disclosure of customer data to state agencies. [12] These efforts have only recently begun yielding some responses from private telecommunications companies in the form of transparency reports, [13] but no commitment to change from the federal government or from CSEC.





Canada’s legislative bodies have also been active. The Senate Standing Committee on National Security and Defence is studying CSEC’s activities [14] and may produce a report with recommendations for reform. Opposition parties in Canada’s primary legislative body -- the House of Commons -- have called for an emergency debate on CSEC’s surveillance activities [15] and for the government to commit to transparency and reform of CSEC. [16] Opposition MP Charmaine Borg attempted to force the disclosure of statistics concerning the scope of government’s agencies’ surveillance efforts (including CSEC’s) and met with limited response from domestic agencies and none from CSEC. [17] Finally, two bills have been introduced by individual MPs to enhance oversight of CSEC’s activities; [18] unfortunately, neither has the government’s support nor do they include amendments to CSEC’s substantive legal or operational framework.

The most promising developments in Canada have arisen from judicial and quasijudicial initiatives. First, Justice Mosley of the Federal Court reconsidered, on his own initiative, a surveillance authorization decision he had issued in 2009. The authorization let the Canadian Security and Intelligence Service intercept, with CSEC’s assistance, the communications of two Canadians travelling abroad as long as the communications transited through Canada. [19] In late 2013, Justice Mosley issued a strong rebuke to CSEC and CSIS for strategically omitting critical information in their 2009 warrant application relating to CSEC’s use of its significant and expansive Five Eyes resources in support of the authorized interceptions. [20] As a result of this decision (which will be appealed) CSEC cannot use its Five Eyes resources when assisting domestic agencies with their surveillance activities.

Additionally, the British Columbia Civil Liberties Association (BCCLA) has brought a constitutional challenge to key aspects of the legal and operational framework that governs CSEC. The suit alleges that CSEC’s current operations and limited oversight infringe sections 8 and 2(b) of the Canadian Charter of Rights and Freedoms which enshrine the right to be free of unreasonable search and seizure and the freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication. [21] The BCCLA has also filed a proposed national class action lawsuit on behalf of Canadians whose private communications and metadata have been collected by CSEC in a manner that violates the Charter.

[22] The Canadian Civil Liberties Association (CCLA) has also launched a lawsuit, challenging the constitutionality of key provisions of PIPEDA, Canada’s federal data protection statute, which prevent private companies such as ISPs from effectively notifying customers when their data has been handed over to state agencies such as CSEC for investigative purposes. [23] Finally, the federal privacy commissioner also A Crisis of accountability 24 released information concerning the regularity at which telecommunications companies were asked for data by government agencies in 2011, though without specificity concerning how often these requests were made by, or on the behalf of, CSEC. [24] In conclusion, the media and Parliament’s attention to signals intelligence has increased significantly, and these efforts have dovetailed with ongoing concerns over the scope and nature of privacy-invasive activities by domestic state agencies.

However, this attention has yet to culminate in any concrete outcomes, as the federal government has so far refused to respond to public criticism of CSEC’s activities. The most promising actions to date have manifested in the courts, though these actions remain in a nascent state.

ENDNOTES:

[1] Colin Freeze and Stephanie Nolen. 2013. “Charges that Canada spied on Brazil unveil CSEC’s inner workings,” The Globe and Mail, October 7, 2013, http://www.theglobeandmail.com/news/world/brazil-spying-report-spotlights-canadaselectronic-eavesdroppers/article14720003/; Colin Freeze, “Read a CSEC Document that was first acquired by Edward Snowden,” The Globe and Mail, November 30, 2013, http://www.theglobeandmail.com/news/politics/read-a-csec-document-onbrazil-that-was-first-acquired-by-edward-snowden/article15699941/; for the most publicly detailed analysis of the program see: Anonymous, “OLYMPIA: How Canada's CSEC maps phone and internet connections,” Top Level Communications, May 14, 2014, http://electrospaces.blogspot.ca/2014/03/olympia-how-canadas-csecmaps-phone-and.html.

[2] “Government Announces Steps to Restore Confidence on Encryption Standards,” http://bits.blogs.nytimes.com/2013/09/10/government-announces-steps-to-restoreconfidence-on-encryption-standards/; Michael Geist, “Canada Facilitated NSA’s Effort to Weaken Encryption Standards”, September 11, 2013, MichaelGeist.ca, http://www.michaelgeist.ca/content/view/6951/196/; Omar El Akkad, “The Strange Connection Between the NSA and an Ontario Tech Firm”, January 20, 2014, Globe and Mail, http://www.theglobeandmail.com/technology/business-technology/thestrange-connection-between-the-nsa-and-an-ontario-tech-firm/article16402341/.

[3] “NSA document raises questions about Canada in G8 spying,” http://www.cbc.ca/news/politics/nsa-document-raises-questions-about-canada-in-g8spying-1.2447398; “NSA Briefing Note on G8/G20 Summits,” http://www.cbc.ca/news2/pdf/summit-doc.pdf.

[4] Greg Weston, Glen Greenwald & R Gallagher, “CSEC used airport Wi-Fi to track Canadian travellers: Edward Snowden documents,” January 31, 2014, CBC News, http://www.cbc.ca/news/politics/csec-used-airport-wi-fi-to-track-canadiantravellers-edward-snowden-documents-1.2517881; “IP Profiling Analytics & Mission Impacts (Snowden slides),” http://www.cbc.ca/news2/pdf/airports_redacted.pdf; for analyses of the slides see: Tope Level Telecommunications, “Did CSEC really track Canadian airport travellers”, February 4, 2014, http://electrospaces.blogspot.ca/2014/02/did-csec-really-tracked-canadian.html; and A Crisis of accountability 25 R. Deibert, “Now we know Ottawa can snoop on any Canadian. What are we going to do?” January 31, 2014, http://www.theglobeandmail.com/globe-debate/now-weknow-ottawa-can-snoop-on-any-canadian-what-are-we-going-to-do/article16625310/.

[5] Colin Freeze, “How CSEC Became an Electronic Spying Giant”, November 30, 2013, Globe and Mail, http://www.theglobeandmail.com/news/politics/how-csecbecame-an-electronic-spying-giant/article15699694/; Ian MacLeod, “Canadian Spies Receive U.S. Money for Research and Surveillance, Book Says”, December 5, 2014, Ottawa Citizen, http://www.ottawacitizen.com/Canadian+spies+receive+money+research+surveillanc e+book+says/9835864/story.html.

[6] “Globe Editorial: Hey CSEC, stop spying on me,” April 3, 2014, http://www.theglobeandmail.com/globe-debate/editorials/dont-spy-on-mecsec/article17781948/; “Globe Editorial: Canada needs a royal commission on spying and privacy of Canadians,”, May 21, 2014, http://www.theglobeandmail.com/globe-debate/editorials/we-need-a-royalcommission-on-spying/article18786038/; “Canada’s oversight of spy agencies falls short,” http://www.thestar.com/opinion/editorials/2014/02/02/canadas_oversight_of_spy_ag encies_falls_short_editorial.html; “National Post Editorial Board: Our spies need oversight,” October 11, 2013, http://fullcomment.nationalpost.com/2013/10/11/national-post-editorial-board-ourspies-need-oversight/.

[7] See: the “Protect Our Privacy Coalition", https://openmedia.ca/ourprivacy. Major actions by participants include: “Call on your MP to stand against costly online spying,” https://openmedia.ca/stand; “World Speaks Out Against Mass Surveillance in Global Day of Online Protest: Day We Fight Back,”

https://www.cippic.ca/en/news/day_we_fight_back; L. Tribe, “The day we fight back:

Stand up against mass surveillance,” February 11, 2014, https://cjfe.org/blog/daywe-fight-back-stand-against-mass-surveillance; PEN Canada, “The Day We Fight Back: Calling for an End to Mass Surveillance,” February 11, 2014, http://pencanada.ca/campaigns/day-we-fight-back-pen-canada-calls-end-masssurveillance/. Other major online actions have included: “Tell Harper: Defend Online Privacy,” https://openmedia.ca/defendprivacy; “Call on your MP to stand against costly online spying,” https://openmedia.ca/stand; “Stand with the BCCLA,” https://openmedia.ca/csec; “Protect Our Privacy,” https://openmedia.ca/ourprivacy.



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