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Naqvi: Solution to Court Delays – Call off your Crowns

There can be no debate — delays in our justice system are a very bad thing. With every week, month and year of delay, memories fade, the quality of evidence degrades and victims are denied legal closure.

And, often intentionally overlooked is the reality that court delays mean that accused persons who are presumed (and often are) innocent suffer ongoing stigma, stress, loss of employment, oppressive bail conditions and incarceration waiting for their trial dates.

Let’s get one thing straight — there is not one accused person being held in our Dicken-sian provincial jails who is intentionally delaying their day in court. There is simply no benefit to do so. Ontario’s remand centres are violent, overcrowded, humanity-destroying hellscapes, which are completely devoid of any rehabilitation programming or basic human comforts.

Canadians only realize how broken the legal system is when they, or someone they know, is sucked into it.

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Privacy and Policing in a Digital World

As the federal government holds public consultations on what changes should be made to Bill C-51, the controversial anti-terrorism legislation passed by the Conservative government, various police agencies such as the RCMP and the Canadian Association of Chiefs of Police have petitioned to gain new powers to access telephone and internet data. Meanwhile nearly half of Canadians believe they should have the right to complete digital privacy. The Agenda examines the question of how to balance privacy rights with effective policing in the digital realm.

I was part of a panel that discussed some of the powers that the Government of Canada is opening for discussion as part of its National Security consultation, which ends on December 15, 2016. If you want to provide comments to the government, see: https://www.canada.ca/en/services/defence/nationalsecurity/consultation-national-security.html

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RCMP is overstating Canada’s ‘surveillance lag’ | Toronto Star

From a piece that I wrote with Tamir Israel for the Toronto Star:

The RCMP has been lobbying the government behind the scenes for increased surveillance powers on the faulty premise that their investigative powers are lagging behind those foreign police services.

The centrepiece of the RCMP’s pitch is captured in an infographic that purports to show foreign governments are legislating powers that are more responsive to investigative challenges posed by the digital world. On the basis of this comparison, the RCMP appears to have convinced the federal government to transform a process intended to curb the excesses of Bill C-51 into one dominated by proposals for additional surveillance powers.

The RCMP’s lobbying effort misleadingly leaves an impression that Canadian law enforcement efforts are being confounded by digital activities.

An Op-ed that I published with a colleague of mine, Tamir Israel, earlier this week that calls out the RCMP for deliberately misleading the public with regards to government agencies’ existing surveillance powers and capabilities.

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Pleading the Case: How the RCMP Fails to Justify Calls for New Investigatory Powers

The powers that the government is proposing in its national security consultation — that all communications made by all Canadians be retained regardless of guilt, that all communications be accessible to state agencies on the basis that any Canadian could potentially commit a crime, that security of communications infrastructure should be secondary to government access to communications — are deeply disproportionate to the challenges government agencies are facing. The cases chosen by authorities to be selectively revealed to journalists do not reveal a crisis of policing but that authorities continue to face the ever-present challenges of how to prioritize cases, how to assign resources, and how to pursue investigations to conclusion. Authorities have never had a perfect view into the private lives of citizens and that is likely to continue to be the case, but they presently have a far better view into the lives of most citizens, using existing powers, than ever before in history.

The powers discussed in its consultation, and that the RCMP has implicitly argued for by revealing these cases, presume that all communications in Canada ought to be accessible to government agencies upon their demand. Implementing the powers outlined in the national security consultation would require private businesses to assume significant costs in order to intercept and retain any Canadian’s communications. And such powers would threaten the security of all Canadians — by introducing backdoors into Canada’s communications ecosystem — in order to potentially collect evidence pursuant to a small number of cases, while simultaneously exposing all Canadians to the prospect of criminals or foreign governments exploiting the backdoors the RCMP is implicitly calling for.

While the government routinely frames lawful interception, mandated decryption, and other investigatory powers as principally a ‘privacy-vs-security’ debate, the debate can be framed as one of ‘security-or-less-security’. Do Canadians want to endanger their daily communications and become less secure in their routine activities so that the RCMP and our security services can better intercept data they cannot read, or retain information they cannot process? Or do Canadians want the strongest security possible so that their businesses, personal relationships, religious observations, and other aspects of their daily life are kept safe from third-persons who want to capture and exploit their sensitive and oftentimes confidential information? Do we want to be more safe from cybercriminals, or more likely to be victimized by them by providing powers to government agencies?

 

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Dissecting CSIS’ Statement Concerning Indefinite Metadata Retention

The Canada Security Intelligence Service (CSIS) released a public statement after the Federal Court found the Service to be breaking the law by permanently retaining metadata they had been collecting. To date, the Public Safety Minister has refused to clarify the numbers of Canadians who have been caught up in this ‘catch once, catch forever’ surveillance regime.

The Service’s statement is incredibly misleading. It is designed to trick Canadians and parliamentarians into thinking that CSIS didn’t do anything that was really ‘that’ bad. I fundamentally disagree with CSIS’ activities in this regard and, as a result, I’ve conducted a detailed evaluation of each sentence of the Service’s statement.

You can read my dissection of CSIS’ statement at Technology, Thoughts, and Trinkets.

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Canada’s spy agency illegally kept data for a decade, court rules

To be clear, the judge’s ruling:

  1. Found that CSIS had deliberately been misleading/lying to the court for a decade concerning the agency’s permanent retention of metadata;
  2. Raised the prospect of contempt of court proceedings against CSIS and its attorneys at the Department of Justice;
  3. Approved changes to unknown warrants (we’re not allowed, as members of the public, to know the warranting powers of CSIS it seems);
  4. Did not require CSIS to delete or stop using the metadata it had illegally collected, on grounds that doing so could raise jurisdictional issues. Translation: the information has been shared, or mixed with, foreign agencies’ metadata already and thus prevents the court from easily crafting a judgment around its use;
  5. CSIS did not believe that it was required to be fully transparent with the federal court that issues CSIS’ warrants on grounds that the court was ‘not an oversight body’;
  6. CSIS had internally, with Department of Justice guidance, secretly reinterpreted laws to cloak its actions in the guise of lawfulness (internally) while deliberately hiding such interpretations and the implications thereof from the court.

Canada has a national security consultation going on, and part of it raises the question of ‘does Canada have sufficient oversight and accountability for its national security operations?’ If you care about these issues, go and spend some time sending a message to the government.

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How Canada’s Anti-Cyberbullying Law Is Being Used to Spy on Journalists

From Motherboard:

According to Citizen Lab researcher Christopher Parsons, these same powers that target journalists can be used against non-journalists under C-13. And the only reason we know about the aforementioned cases is that the press has a platform to speak out.

“This is an area where transparency and accountability are essential,” Parsons said in an interview. “We’ve given piles and piles of new powers to law enforcement and security agencies alike. What’s happened to this journalist shows we desperately need to know how the government uses its powers to ensure they’re not abused in any way.”

“I expect that the use of these particular powers will become more common as the police get more used to using it and more savvy in using them,” Parsons said.

These were powers that were ultimately sold to the public (and passed into law) as needed to ‘child pornography’. And now they’re being used to snoop on journalists to figure out who their sources are, without being mandated to report on the regularity at which the powers are used to the efficacy of such uses. For some reason, this process doesn’t inspire a lot of confidence in me.

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Canada’s National Security Consultation: Digital Anonymity & Subscriber Identification Revisited… Yet Again – Technology, Thoughts & Trinkets

Over at Technology, Thoughts, and Trinkets I’ve written that:

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 legal experts 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.

I wrote the first of what will be many analyses of the Canadian government’s national security consultation with a good friend and colleague, Tamir Israel.

The subscriber identification powers we write about are not really intended for national security but will, instead, be adopted more broadly by law enforcement so they can access the data indiscriminately. Past legislative efforts have rejected equivalent powers: it remains to be seen if the proposal will (once more) be successfully rejected, or whether this parliament will actually establish some process or law that lets government agencies get access to subscriber identification information absent a warrant.

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Why doctors are rebelling against Ontario’s crumbling healthcare system

Toronto Life:

The fact that doctors bill more than $11 billion annually makes them something like a corporation—their revenues are roughly the same as Air Canada’s or Canadian Tire’s. When companies of that size have to deal with revenue freezes or shortfalls, they respond by finding efficiencies, eliminating duplication and waste, lowering wages or prices, squeezing suppliers for discounts. They take a hard look at how they run their business, and they usually become better companies as a result. Doctors refuse to do this work. Hoskins is determined to force them.

I’m uncertain that the author has ever travelled on Air Canada. Unless, of course, they think that the ‘efficiencies’ Air Canada has achieved by laying of thousands of people, worsening service quality, and regularly failing to meet its agreements with customers have made Air Canada a “better company” as a result.

IMSI Catcher Report Calls for Transparency, Proportionality, and Minimization Policies – The Citizen Lab

IMSI Catcher Report Calls for Transparency, Proportionality, and Minimization Policies:

The Citizen Lab and CIPPIC are releasing a report, Gone Opaque? An Analysis of Hypothetical IMSI Catcher Overuse in Canada, which examines the use of devices that are commonly referred to as ‘cell site simulators’, ‘IMSI Catchers’, ‘Digital Analyzers’, or ‘Mobile Device Identifiers’, and under brand names such as ‘Stingray’, DRTBOX, and ‘Hailstorm’. IMSI Catchers are a class of of surveillance devices used by Canadian state agencies. They enable state agencies to intercept communications from mobile devices and are principally used to identify otherwise anonymous individuals associated with a mobile device and track them.

Though these devices are not new, the ubiquity of contemporary mobile devices, coupled with the decreasing costs of IMSI Catchers themselves, has led to an increase in the frequency and scope of these devices’ use. Their intrusive nature, as combined with surreptitious and uncontrolled uses, pose an insidious threat to privacy.

This report investigates the surveillance capabilities of IMSI Catchers, efforts by states to prevent information relating to IMSI Catchers from entering the public record, and the legal and policy frameworks that govern the use of these devices. The report principally focuses on Canadian agencies but, to do so, draws comparative examples from other jurisdictions. The report concludes with a series of recommended transparency and control mechanisms that are designed to properly contain the use of the devices and temper their more intrusive features.

I’m not going to lie: after working on this with my colleague, Tamir Israel, for 12 months it was absolutely amazing to publicly release this report. What started as a 1,500 word blog post meant to put defense lawyers on notice of some new legislation transmogrified into a 130 page report that is the most comprehensive legal analysis of these devices that’s been done to date. It’s going to be interesting to see what the effects of it are for cases currently being litigated in Canada and around the world!