The issue of lawful access has repeatedly arisen on the Canadian federal agenda. Every time that the legislation has been introduced Canadians have opposed the notion of authorities gaining warrantless access to subscriber data, to the point where the most recent version of the lawful access legislation dropped this provision. It would seem, however, that the real motivation for dropping the provision may follow from the facts on the ground: Canadian authorities already routinely and massively collect subscriber data without significant pushback by Canada’s service providers. And whereas the prior iteration of the lawful access legislation (i.e. C–30) would have required authorities to report on their access to this data the current iteration of the legislation (i.e. C–13) lacks this accountability safeguard.
In March 2014, MP Charmaine Borg received responses from federal agencies (.pdf) concerning the agencies’ requests for subscriber-related information from telecommunications service providers (TSPs). Those responses demonstrate extensive and unaccountable federal government surveillance of Canadians. I begin this post by discussing the political significance of MP Borg’s questions and then proceed to granularly identify major findings from the federal agencies’ respective responses. After providing these empirical details and discussing their significance, I conclude by arguing that the ‘subscriber information loophole’ urgently needs to be closed and that federal agencies must be made accountable to their masters, the Canadian public.
Last month I, along with a series of academic researchers and civil liberties organizations, asked Canada’s leading Telecommunications Services Providers (TSPs) to disclose how, why, and how often they provide telecommunications information pertaining to their subscribers to state agencies. We received responses from ten of sixteen companies a little over a month later. Many of the companies steadfastly refused to provide any information beyond assertions that they protected Canadians’ privacy, that they were largely prohibited from providing any specific information because of national security or confidentiality of investigative techniques reasons, and that the signatories to the letter would be better suited contacting the government directly.
Less directly, I’ve heard from a series of high-profile figures in Canada’s telecommunications industry and national security community. Some figures in the telecommunications industry expressed concern about Canadians’ privacy but indicated that they lacked the time, inclination, resources, or sufficient buy-in to ascertain what they could do to render their companies’ practices more transparent. TELUS is on record as stating they would “request the Government to clarify and limit the scope of current confidentiality requirements and to consider measures to facilitate greater transparency.” Members of the national security community worried about enhancing Canadians’ trust in what they do, but remained uncertain about what they could specifically recommend to their peers. Almost all the people I’ve spoken with have indicated that they would appreciate some kind of practical ‘here’s what could be done’ document that they could use to develop an internal business case for an expanded transparency regime.
This post offers some guidance for how companies can improve their transparency practices, along with why particular proposals should be adopted. Specifically, I identify three things that companies do in the order of least to most challenging tasks. They could disclose data retention periods, make their lawful access handbooks available to the public, and produce full-bodied transparency reports. Critically, the first two of these proposals would just require publicizing documentation that Canada’s TSPs already retain. After outlining all three proposals, I conclude by explaining why corporate transparency needs to be complemented by government accountability.
On January 20, 2014 the Citizen Lab along with leading Canadian academics and civil liberties groups sent letters to Canada’s most prominent Internet service providers. We asked the companies to reveal the extent to which they voluntarily, and under compulsion, disclose information about their subscribers to state agencies, as well as for information about business practices and data retention periods. The requested information would let researchers, policy analysts, and civil liberties groups better understand the current telecommunications landscape and engage in evidence-based policy analysis of current and proposed government surveillance activities. The companies were asked to provide responses by March 3, 2014.
A considerable amount of attention has been given to state access to telecommunications data since January 20. Organizations such as the Globe and Mail wrote that Canadians deserve to know who is listening to their communications, and reporting by The Wire Report found that while telecommunications companies believed they might not be able to respond to all the questions in the letters, at least some responses might be provided without running afoul of government gag laws. However, The Wire Report also found that some sources believed they were forbidden from disclosing any information about the assistance they provide to government agencies, with one stating they were “completely resigned.”
At the same time as the letters were being examined by the companies, a series of high-profile telecommunications-related stories broke in the media. In the United States, leading telecommunicationscarriers released ‘transparency reports’ that put some information in the public arena concerning how often the companies disclose information to American state agencies. In Canada, there were revelations that the Communications Security Establishment Canada (CSEC) had surreptitiously monitored the movements of Canadians vis-a-vis mobile devices that connected to wireless routers. These revelations sparked renewed interest in the origins of CSEC’s data, whether Canadian telecommunications companies either voluntarily or under compulsion provide data to CSEC, the nature of CSEC’s ‘metadata’ collection process, and the rationales driving data exchanges between telecommunications companies and state agencies more generally. The Office of the Privacy Commissioner of Canada also tabled a report that outlined a series of ways to improve accountability and transparency surrounding state access to telecommunications data. Finally, MP Charmaine Borg, the New Democratic Party Member of Parliament for the riding of Terrebonne—Blainville in Quebec, issued a series of questions to the federal government that are meant to render transparent how federal agencies request information from telecommunications companies.
The Canadian SIGINT Summaries includes downloadable copies, along with summary, publication, and original source information, of leaked CSE documents.
Parsons, Christopher; and Molnar, Adam. (2021). “Horizontal Accountability and Signals Intelligence: Lesson Drawing from Annual Electronic Surveillance Reports,” David Murakami Wood and David Lyon (Eds.), Big Data Surveillance and Security Intelligence: The Canadian Case.
Parsons, Christopher. (2015). “Stuck on the Agenda: Drawing lessons from the stagnation of ‘lawful access’ legislation in Canada,” Michael Geist (ed.), Law, Privacy and Surveillance in Canada in the Post-Snowden Era (Ottawa University Press).
Parsons, Christopher. (2015). “The Governance of Telecommunications Surveillance: How Opaque and Unaccountable Practices and Policies Threaten Canadians,” Telecom Transparency Project.
Parsons, Christopher. (2015). “Beyond the ATIP: New methods for interrogating state surveillance,” in Jamie Brownlee and Kevin Walby (Eds.), Access to Information and Social Justice (Arbeiter Ring Publishing).
Bennett, Colin; Parsons, Christopher; Molnar, Adam. (2014). “Forgetting and the right to be forgotten” in Serge Gutwirth et al. (Eds.), Reloading Data Protection: Multidisciplinary Insights and Contemporary Challenges.
Bennett, Colin, and Parsons, Christopher. (2013). “Privacy and Surveillance: The Multi-Disciplinary Literature on the Capture, Use, and Disclosure of Personal information in Cyberspace” in W. Dutton (Ed.), Oxford Handbook of Internet Studies.
McPhail, Brenda; Parsons, Christopher; Ferenbok, Joseph; Smith, Karen; and Clement, Andrew. (2013). “Identifying Canadians at the Border: ePassports and the 9/11 legacy,” in Canadian Journal of Law and Society 27(3).
Parsons, Christopher; Savirimuthu, Joseph; Wipond, Rob; McArthur, Kevin. (2012). “ANPR: Code and Rhetorics of Compliance,” in European Journal of Law and Technology 3(3).