Payphones by Christopher Parsons (All Rights Reserved)
I have a paper on telecommunications transparency reports which has been accepted for publication in Business and Society for later this year.
Centrally, the paper finds that companies will not necessarily produce easily comparable reports in relatively calm political waters and that, even should reports become comparable, they may conceal as much as they reveal. Using a model for evaluating transparency reporting used by Fung, Graham, and Weil in their 2007 book, Full Disclosure: The Perils and Promises of Transparency, I find that the reports issued by telecommunications companies are somewhat effective because they have led to changes in corporate behaviour and stakeholder interest, but have have been largely ineffective in prodding governments to behave more accountably. Moreover, reports issued by Canadian companies routinely omit how companies themselves are involved in facilitating government surveillance efforts when not legally required to do so. In effect, transparency reporting — even if comparable across industry partners — risks treating the symptom — the secrecy of surveillance — without getting to the cause — how surveillance is facilitated by firms themselves.
‘Communication’ by urbanfeel (CC BY-ND 2.0) at https://flic.kr/p/4HzMbw
Last year a report that I wrote for the Centre for Law and Democracy was published online. The report, “Transparency in Surveillance: Role of various intermediaries in facilitating state surveillance transparency,” discusses how governments have expanded their surveillance capabilities in an effort to enhance law enforcement, foreign intelligence, and cybersecurity powers and the implications of such expansions. After some of these powers are outlined and the impact on communicating parties clarified, I explore how the voluntary activities undertaken by communications intermediaries can also facilitate government surveillance activities. However, while private companies can facilitate government surveillance they can also facilitate transparency surrounding the surveillance by proactively working to inform their users about government activities. The report concluded by discussing the broader implications of contemporary state surveillance practices, with a focus on the chilling effects that these practices have on social discourse writ large.
Phone by Any & Carrie Coleman (CC BY-NC-ND 2.0) https://flic.kr/p/4jtzjb
Last month, Public Safety Canada followed through on commitments to review and consult on Canada’s national security framework. The process reviews powers that were passed into law following the passage of Bill C-51, Canada’s recent controversial anti-terrorism overhaul, as well as invite a broader debate about Canada’s security apparatus. While many consultation processes have explored expansions of Canada’s national security framework, the current consultation constitutes the first modern day attempt to explore Canada’s national security excesses and deficiencies. Unfortunately, the framing of the consultation demonstrates minimal direct regard for privacy and civil liberties because it is primarily preoccupied with defending the existing security framework while introducing a range of additional intrusive powers. Such powers include some that have been soundly rejected by the Canadian public as drawing the wrong balance between digital privacy and law enforcement objectives, and heavily criticized by legalexperts as well as by all of Canada’s federal and provincial privacy commissioners.
The government has framed the discussion in two constituent documents, a National Security Green Paper and an accompanying Background Document. The government’s framings of the issues are highly deficient. Specifically, the consultation documents make little attempt to explain the privacy and civil liberties implications that can result from the contemplated powers. And while the government is open to suggestions on privacy and civil liberties-enhancing measures, few such proposals are explored in the document itself. Moreover, key commitments, such as the need to impose judicial control over Canada’s foreign intelligence agency (CSE) and regulate the agency’s expansive metadata surveillance activities, are neither presented nor discussed (although the government has mentioned independently that it still hopes to introduce such reforms). The consultation documents also fail to provide detailed suggestions for improving government accountability and transparency surrounding state agencies’ use of already-existent surveillance and investigative tools.
In light of these deficiencies, we will be discussing a number of the consultation document’s problematic elements in a series of posts, beginning with the government’s reincarnation of a highly controversial telecommunication subscriber identification power.
On January 14, 2016, the Ontario Superior Court ruled that “tower dumps” – the mass release of data collected by cellphone towers at the request of law enforcement agencies – violate privacy rights under the Canadian Charter of Rights and Freedoms. In response, Justice Sproat outlined a series of guidelines for authorities to adhere to when requesting tower dump warrants in the future.
I wrote about this case for PEN Canada. I began by summarizing the issue of the case and then proceeded to outline some of the highlights of Justice Sproat’s decision. The conclusion of the article focuses on the limits of that decision: it does not promote statutory reporting of tower dumps and thus Canadians will not learn how often such requests are made; it does not require notifying those affected by tower dumps; it does not mean Canadians will know if data collected in a tower dump is used in a subsequent process against them. Finally, the guidelines are not precedent-setting and so do not represent binding obligations on authorities requesting the relevant production orders.
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).