You’re being watched. At every moment they can track you. They know where you are, and if they wished, they could see you. Not only your exterior, but all those things you keep private.
It is important for the public to realize that the government, through their agencies, is capable of taking their information at any given moment. Regulating these agencies is hard and more difficult than attempting to regulate them, is holding them accountable for violating a person’s privacy.
There are plenty of laws with the objective of protecting the rights our rights, however there is also the need to protect the country as a whole. Information taken from cell phones and internet searches is useful to Government agencies like the Royal Canadian Mounted Police (RCMP) and Canadian Security Intelligence Service (CSIS) for potential threat identification. Devices like the StingRay can help identify threats by intercepting their communications. Once the data has been intercepted, these agencies can then filter through the collected data and establish who could be a potential threat based on internet searches and other data like social media activity. Unfortunately, Canadian citizens hardly have a say in which data these agencies collect nor are they informed when their data is collected.
The most noteworthy piece of legislation for the protection of personal privacy is section 8 of the Canadian Charter of Rights and Freedoms. This section outlines that everyone has the right to be secure against unreasonable search and seizure (1). Section 8 limits the search and seizure power of the government, including the police and government agencies such as the RCMP (1). Section 8 thus aims to balance a person’s privacy and the ability to investigate and prosecute a crime (1).
One misconception about this section is that is only applies to physical searches such as a police search of your car, it applies to electronic data as well. If there is no reasonable suspicion that a person is involved in criminal activity, then there aren’t any grounds to obtain a warrant to make that search lawful. As that search would contradict a person’s section 8 rights, the court could not consider it under section 24 (2) of the Charter.
The problem of digital privacy is pressing for the Government of Canada, especially as technology advances. It is an issue that is constantly talked about and is constantly redefined. It seems like there’s a new privacy case before the Supreme Court every year. Take R v Marakah,in which Nour Marakah sent texts regarding an illegal firearms deal. While he was at his friend, Mr Winchester’s, house, the police came with a warrant to search the house, and in the process seized and searched Marakah’s phone. Marakah argued that the search of his phone violated his section 8 Charter right as the police had no warrant to searc.h Marakah said that the court should exclude the evidence collected from the search. The judge ruled in Marakah’s favour and excluded the evidence, yet the fact that the police officer paid no heed to Marakah’s privacy and received no disciplinary actions regarding this is concerning. The police should not make decisions based on their whims and certainly not without any substantial proof. If the police act in this manner, then there will be far less real justice and instead people will have their lives turned inside out with their personal data in the hands of the people that are meant to prevent such things from happening. It seems as though government agencies act before thinking as they know that most times, they’ll only get a slap on the wrist.
The government is able to access a plethora of data, all of which is readily available to them. According to the Office of the Privacy Commissioner of Canada, personal privacy only includes, “race; national or ethnic origin; religion; age; marital status; blood type; fingerprints; medical, criminal or employment history; information on financial transactions; home address; and your Social Insurance Number, driver’s licence or any other identifying number assigned to you” (3).
This definition does not include personal messages and other forms of correspondence. Access to information such as personal correspondence or tracking people through their devices requires a search warrant or court order. Without a search warrant or a court order, the search will not be legal. It also does not include monitoring of social media accounts.
The Government can still access all of the data on every phone in the country can send messages to it at anytime. The use of the Amber alert system is a prime example of how the Canadian Government can access every phone in the country to send alerts in case of a child abduction. While this has proven to be highly beneficial, and does indeed fulfill its purpose, it leads one to question how the Government monitors, stores and uses data.
A recent article from CBC News reports that the RCMP has launched a review into how they monitor social media accounts to make sure that they are in compliance with federal regulations. The RCMP monitors social media accounts in two ways. The first way is after a crime is committed and the second is for the detection and the prevention of crimes (4). By monitoring the actions of people on social media- checking who a person follows, what they post, what they comment- the Government is able to figure out which people to keep a closer watch on. While this information is generally based on publicly shared information, the RCMP and other public officials can still access private correspondence after obtaining a court warrant. To get a court warrant, all that the police require is proof that there is reasonable suspicion against the person in question, which they gather from anything a person posts online, whom they follow or even internet searches. It does not take into account how people may post or search things without concern for how others interpret them. Since there is little to no regulation of these agencies and they hide their actions from the public’s view, there is also no accountability for their actions.
CBC News also reports in another article published in 2016 that Public Safety Canada has approved many requests from the RCMP, CSIS and the Defence Department to license some companies to manufacture, sell and possess devices, which intercept communications. When further asked on the topic, these security agencies remained silent about the type of devices used, however most people who work in the field, believe that the device is a StingRay or an International mobile subscriber identity (IMSI) catcher (5). These devices can track people through a mobile device’s ID- which is unique to every device- and has allowed the interception of communications based on signals emitted and directed to and from the device (5).
This means that government agencies like the RCMP and CSIS know where you are every second of the day, which websites you search, the pictures you look at, the text messages and emails you send; these agencies can intercept signals sent out by every single digital action people do.
No one knows exactly what devices these agencies use, and the deafening silence on the topic is highly disturbing. What is also disturbing is that agencies like the RCMP and other public officials do not need approval from Public Safety to use such devices and neither do they need authorization from Innovations Canada, a requirement for anyone not a part of these agencies (5). The RCMP, CSIS and similar agencies apparently do not need to explain themselves to anyone. There is no regulating the unseen or taking action on injustices that no one knows exists.
At 2019’s Borovoy Law Conference, Nadia Z. Hasan, the Deputy Director of the National Council of Canadian Muslims conducted a workshop on CSIS. She mentioned that CSIS determines targets based on a person’s race and religion, essentially racial profiling (6). She conducted an interview with a few of the CSIS agents and the answers she received were astonishing. CSIS openly states that they specifically target Muslims when collecting data, regardless of whether or not they are actually involved in any criminal proceedings (6). Obviously this blatant discrimination is not only applicable to surveillence of Muslims, but other minorities in the country. This is high level discrimination at an agency level. The fact that public servants don’t seem to be acting in the best interest of the whole public is a deeply troubling matter. What is appalling is not only that such discrimination exists, but that a Government that prides itself on diversity has not done anything to hold CSIS accountable for such actions.
Yes, there are some laws in place as a half hearted attempt to regulate these government agencies, however there is absolutely no accountability. How is it even possible to regulate and hold a government agency accountable if there is hardly any transparency regarding their actions?
While CSIS does not have the power to arrest people, they do have the power to destroy lives, such as by shutting down someone’s bank account (6). The people who they target may never know that CSIS was behind the sudden upset in their lives. Without the person knowing who was responsible for the turmoil in their lives there would be no way to hold CSIS accountable for all the damage that they caused. It is possible for citizens sue CSIS but it is almost impossible to gather enough evidence for a substantial case.
Canadians are treated as prisoners in their own homes, constantly watched for any signs of misconduct. There’s a huge lack of transparency on the issue of what information is collected and how exactly government agencies use it. It is important for Canadians to push for legislation that holds government agencies responsible for breaches of privacy based on discrimination and racial profiling. These agencies must be held accountable for their actions and must not be able to sidestep the law to wrongfully enter the private lives of Canadian citizens. They’re watching you, are you watching them?
- Nadia Z. Hassan PhD, Deputy Director of the National Council of Canadian Muslims.