Michael Geist, ed., Law, Privacy, and Surveillance in the Post-Snowden Era (Ottawa: University of Ottawa Press, 2015).

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Edward Snowden came to global prominence in 2013 for having stolen classified information from the U.S. National Security Agency. The material, particularly that which revealed numerous global surveillance programs run by the NSA and the “Five Eyes” intelligence community, continues to garner public attention.[1] Admired or reviled, Snowden remains in Moscow, subject to U.S. charges of government property theft and violating the Espionage Act.

In Law, Privacy, and Surveillance in the Post-Snowden Era, Michael Geist and nine other contributors assess the subsequent effect of these revelations upon Canadians. This book provides a litany of examples supposedly showing governmental abuse of Canadians’ individual rights, with many examples becoming magnified through repetition, to which I will return momentarily. I personally believe, unequivocally, that one of this country’s greatest strengths is its respect for individual rights and freedoms. However, the strength of our freedoms must be balanced with the government’s requirement to provide us with defence and security from numerous threats; except for the occasional one-liner, such acknowledgement is lost in the hubris.

With one exception, the authors assess issues of privacy and internet surveillance with analyses of varying quality. The one standout is Steve Hewitt’s chapter on covert human intelligence — old school spying. Hewitt is an acknowledged historian, having written extensively on intelligence and security topics. This chapter certainly reaffirms his abilities yet seems out of place with the remainder of the narrative.

While the book starts with how Snowden’s revelations shook the U.S. National Security Agency, the focus is primarily upon Canada’s counterpart, the Communications Security Establishment. The authors consider oversight and accountability effectiveness, the various permutations of metadata collection, and the impacts of various new technologies. In so doing, there is a consistent theme of frustration that Canadians are failing to see inappropriate government intrusions, and worse, are not actively mobilizing opposition. This theme of disappointment, interspersed with occasional suggestions on how to effectively combat the government, become somewhat repetitive. Several of the chapters acknowledge the support and feedback of other contributors in the book, which doubtless contributed to the echo-chamber effect.

In addition to failing to acknowledge a requirement to balance security with freedoms, several chapters include an almost apologetic acceptance that the situation is not as catastrophic as they portray, even observing that “formidable as the challenges are to achieving surveillance reform within Canada, it remains the case that Canadians’ data enjoy much better legal protection…” (p. 35) However, one generally has to read closely to find such confessions. As such, several authors stand out for specific mention.

Geist’s contribution on reforms and accountability recognizes that “current surveillance and privacy laws were crafted in a much different world.” (p.248) The geographic and content restrictions placed upon the Communications Security Establishment, for example, were suitable when CSE was focused almost exclusively upon the then-Soviet Union; the computing power and skills for metadata mining were non-existent.  As such, many oversight improvements that fail to address these outdated issues risk leaving many of the perceived core problems as potential loopholes.

Lisa Austin’s chapter provides the most balanced assessment of the situation. She notes that the public protests national security issues because “it must be unlawful.” (p. 103) This presumes increased awareness and dissatisfaction at what the government is doing on our behalf, but little evidence is provided. Yet she is forthright in subsequently concluding that we “need to stop thinking that the issue is illegal activity on the part of our national security agencies…[understanding] that our national security agencies do, in good faith, see themselves to be acting within the law.” (p. 120)

Directly addressing Snowden’s Canadian revelations, Craig Forcese writes almostbreathlessly about how the “controversies ignited by Snowden – although single-sourced, decontextualized, and often difficult to understand – has kept the matter in the public eye.” (p. 128) Personally following such issues, in addition to discussions with arguably left-leaning academics and students at three universities, leads me to believe that these matters are not remotely in the public eye.[2]

The author who comes across as the most personally incensed is Christopher Parsons, bemoaning the stagnation of anti-government access progress, within the context of earlier anti-cyber bullying legislation. He concedes that contentious issues bedeviling prior legislation have been removed, yet there is still insufficient outcry, which he blames on a combination of: inadequate national security leaks to force the government onto the defensive; public, policy, and media agendas creating an environment where embarrassing questions are not asked; and, insufficient opposition party activity against the government. (pp. 271-272) Parsons therefore provides a “how-to” guide of forcing government change. In effect, virtually no one sees the issue as calamitous as the authors wish it to be.

As with any publication, strengths and weaknesses are to be expected. A particular strength of this book is the uniformly first-rate citations, provided by all of the various authors. I found myself on several occasions being led astray on tangential inquiries whenever I turned to the references. Yet there are disappointments as well.  First, Professor Wesley Wark is mentioned in the opening Acknowledgement for having contributed “enormously to the vision behind the book and the recruitment of contributors.” (p. vii) He also appears consistently in various endnotes. Yet he does not have a chapter within this anthology. A revisiting of his 2012 research paper for the Privacy Commissioner, “Electronic Communications Interception and Privacy: Can the Imperatives of Privacy and National Security be Reconciled?” would have been quite apt and added balance to this anthology.[3] My second concern is the inexplicable absence of an Index. As an academic who often returns to books to find specific details for later research, I rely often on the Index.

I do not think anyone doubts that there are potential issues surrounding our increased reliance on data, particularly regarding data ownership, predictive policing, privacy and protection, and cyber security – without even broaching the realm of artificial intelligence, which could magnify these issues exponentially. It is undeniable that electronic monitoring technologies are becoming more affordable, and hence, more pervasive; boundaries between technical possibilities and legal and social acceptability are therefore being challenged. As timely evidence, this review is being written with the Cambridge Analytica scandal as backdrop, in which Facebook users’ personal information allowed the Trump campaign to better target voters by profiling their behaviour and personalities. Additionally, the U.S. National Intelligence Council has warned that “countries less bound by ethical concerns might deploy technologies that others oppose or loosen regulations to attract high technology firms and to build R&D capability.”[4] Key choices will become increasingly political and ideological; nations must balance restricting information flows for privacy reasons with the potential curtailment of economic and social gains that could come with such actions.

If you are predisposed to feel that government surveillance needs to be curtailed, then this book will reinforce your beliefs. If you are unsure of the national security versus personal privacy balance, this book may motivate you to explore more deeply, which is not a bad thing. Personally, I found this to be an interesting, although occasionally exasperating, read.  Despite the repeated warnings that government surveillance is out of control, one must conclude that the balance between freedoms and securities appears acceptable to the majority of Canadians, notwithstanding failing to meet the expectations of this distinct group. As Steve Hewitt reminds us, “the Supreme Court of Canada has been pretty clear in saying that the Charter [of Rights and Freedoms] doesn’t protect you from a poor choice of friends.” (p. 49)

 

[1] The Five Eyes community is an intelligence alliance comprising Canada, the United States, the United Kingdom, Australia and New Zealand.

[2] In contrast to this chapter, I admire and often refer to Craig Forcese’s National Security Law: Canadian Practice in International Perspective(Toronto, Irwin Law, 2008).

[3] Wesley Wark, “Electronic Communications Interception and Privacy: Can the Imperatives of Privacy and National Security be Reconciled?”,http://www.cips-cepi.ca/wp-content/uploads/2012/04/WARK_WorkingPaper_April2012.pdf.

[4] U.S. Government, National Intelligence Council, “Global Trends: Paradox of Progress,” January 2017, 176 and 197, https://www.dni.gov/files/documents/nic/GT-Full-Report.pdf.

 

Bob Martyn, PhD, is affiliated with Queen’s University’s Centre for International and Defence Policy, as well as the Canadian Institute for Military and Veteran Health Research. He has taught History and Politics courses at the Royal Military College of Canada, Canadian Forces College, and Queen’s University. His previous military career included tours of Cyprus, Bosnia, Kosovo, and Afghanistan, as well as jumping from airplanes at every opportunity.

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