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Government surveillance overshadows free speech for Canadian journalists

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By Justin Chandler

Mass surveillance causes reporters to avoid writing or speaking about some topics, according to a recent survey of journalists by Ryerson’s Centre for Free Expression (CFE).

“Journalists and writers are society’s eyes and ears and [when] they feel they have to self-censor because of government surveillance, then we as a public lose,” CFE director James Turk said.

Twenty-two per cent of respondents to the CFE survey said they deliberately avoided writing or speaking about certain topics and 15 per cent said they seriously considered doing so. Nine per cent of respondents said they had chosen not to cover or write about a protest, demonstration or controversial political event because of mass surveillance.

Twenty per cent of respondents said they refrained from conducting internet searches or visiting certain websites. Another 17 per cent said they thought about doing that because of surveillance.

The survey, published Nov. 14, was prepared by Turk. A total of 129 Canadian writers and journalists volunteered to complete the survey between May 27 and June 20.

Journalists worried

Over 80 per cent of respondents reported they were concerned about government surveillance of their communications and more than 90 per cent said they were concerned with government collection and analysis of metadata.

Metadata includes information about people’s phone calls, emails and web browsing.

“You learn more about me from looking at my phone than you would if you could go through my apartment”

Although some in law enforcement argue that metadata is innocuous, privacy advocates say even the times at which communications are sent and who they’re between give a lot of insight into people’s habits.

Eighty-six per cent of respondents to the CFE survey said they were concerned about corporations gathering data on Canadians and over 95 per cent of respondents said they worried about companies giving that information to the government.

Recent spying revelations

These reported worries could increase in the aftermath of new revelations about government surveillance. In November, it was revealed that police in Quebec spied on the communications of up to 10 journalists and five different news organizations for five years. It appears that in all revealed cases, police had warrants to spy on journalists’ phone calls as part of investigations.

On Nov. 3, another revelation about state spying came when a Federal Court judge ruled the Canadian Security Intelligence Service (CSIS) illegally kept data on people who didn’t pose security risks.

CSIS is Canada’s primary intelligence agency.

Justice Simon Noël ruled CSIS had illegally stored an unknown amount of data on people who communicated with the targets of investigations, but were not considered threats themselves, since 2006. The agency had been legally obligated to destroy that data.

Security powers in Canada

The federal government is currently consulting Canadians about the state’s security apparatus by holding hearings to solicit public opinion.

Turk is “very pessimistic” about the prospect of the Trudeau government limiting surveillance, despite the federal Liberal Party campaigning on a promise to reform Bill C-51, a security bill passed in 2015 that expands security powers.

Among other things, C-51 gives CSIS the power to disrupt what they perceive to be security threats, rather than just collect information. It also makes it easier for government departments to share information.

“I think they’re just hoping by dragging it out that the public anger and concern about C-51 will gradually dissipate,” Turk said.

He said the government has mostly discussed changing the oversight measures around security agencies. Current oversight measures are a joke, but reforming them won’t protect privacy if security powers remain invasive, Turk said.

David Christopher, communications manager for internet freedom advocacy group OpenMedia, said Canada’s security safeguards are “woefully insufficient.”

Canada’s security powers were written for the pre-digital age and don’t reflect the reality that people live much of their lives online, Christopher said.

“You learn more about me just from looking at my phone than you would if you actually could go through my apartment,” he said.

Police want more power

Canadian police and security organizations argue our privacy laws are outdated, but they see current laws as underreaching.

In mid-November, the RCMP provided CBC News and Toronto Star reporters with information about on- going criminal investigations.

The reporters learned of cases in which police were unable to access digital information they wanted because it was encrypted.

Encryption is the process of encoding data so that only someone with access to a key (usually the owner and intended recipient) can decode and use it. But in most cases, the communications service provider can decrypt communications.

In one case that the RCMP presented to reporters, investigators were unable to open a phone they thought might contain a video of an alleged sexual assault.

Police want laws that could force suspects to provide them with access to encrypted devices (by opening a locked iPhone, for example). They also want the power to force telecommunications companies to intercept and retain more data to help in investigations, and for those businesses to provide police with subscriber information, like names and addresses, without police having a warrant.

In 2014, a Supreme Court case deemed warrantless access to basic subscriber information unlawful. Before the practice was outlawed, police requested a significant amount of information from telecom agencies. Rogers Communications received 90,000 requests for subscriber information from law enforcement in 2013 that did not require warrants.

Christopher said basic subscriber information can tie an individual to everything they do online.

Connecting a person’s internet history with an identity is an enormous privacy violation and should only be granted with a warrant, he said.

It may be unconstitutional for police to force people to provide access to encrypted devices, because of protections against incriminating oneself in the Canadian Charter of Rights and Freedoms, Christopher said.

He added that the only way to tell if an encrypted device really holds information pertinent to an investigation is to decrypt it. This opens up the possibility of fishing expeditions (police accessing devices to search for evidence they don’t know is there).

Micheal Vonn, policy director of the British Columbia Civil Liberties Association, said police need to offer Canadians specific data showing the need for more powers, rather than sharing anecdotes.

She said police are failing to acknowledge the effects surveillance has on people, referencing the CFE study.

The government and security agencies are beholden to citizens, not vice versa, said Vonn. So the government must make a strong case if it wants Canadians to sacrifice their privacy for security.

Public response

Just over 70 per cent of respondents to the CFE survey said most Canadians are unaware or unconcerned about government surveillance.

Christopher said he thinks Canadians care about it and that more people are realizing everyone wants to keep some things secret from the state.

“Part of what it is to be a human being is that right to a private life,” Christopher said.

A poll conducted by CBC News and the Toronto Star in October and November, found 15 per cent of respondents said they had encrypted their communications and 17 per cent said they had used a service to mask their online identity.

Vonn said it’s likely people did not consider that many forms of online communication are encrypted to some extent. Other online activities, like banking, are also encrypted.

End-to-end encryption—the strong kind that law enforcement is worried about, is much rarer. With that kind of encryption, no third party has ac- cess to senders’ and receivers’ keys.

The same poll found 77 per cent of respondents supported police forcing someone to surrender encryption keys or a passcode as part of a criminal investigation, with a court order from a judge.

Only 49 per cent said the same scenario was OK without a judge’s review.

Vonn said the polling questions were vague and that she isn’t surprised Canadians think it’s OK to compel people to unlock devices in some cases. But she said there’s no clear way to do so under the Charter.

Turk said people need to understand that surveillance is pervasive.

“You can assume that every cell phone call you ever make is recorded … And you can assume in all likelihood that at the very least, the meta-data from every email you send is tracked,” he said.

People also need to realize there are easy things they can do to protect themselves, Turk said.

Securing your communications

Signal, a free app, is considered by many to be the best for secure messaging. It uses end-to-end encryption, meaning if they’re intercepted, they cannot be decoded.

Popular messaging apps WhatsApp and iMessage use end-to-end encryption by default and in October, Facebook Messenger added an option that sends messages using the same protocol as Signal.

Tor is a program that anonymizes online traffic. It can be downloaded for free on a computer or Android device.

A virtual private network (VPN) encrypts web traffic and can make it appear like a user’s traffic is coming from another location. There are several free and paid VPN services available for computers and phones.

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