An Interview with David Christopher

May 19, 2015

David Christopher is the Communications Manager of OpenMedia and blogs regularly for the organization. We spoke to him about privacy rights online.

This article is part of a series of interviews with advocates, legal thinkers, community organizers and academics on issues related to Canadian civil liberties produced by CCLA volunteers. All responses are the interview subject’s own, and do not necessarily represent the viewpoint or positions of the CCLA.

CCLA: What do Canadian citizens need to know about their privacy right and how to protect them in the 21st century?

DC: I think first and foremost is really I would like to underline just how important privacy rights are to any healthy democracy. Democracies rest on the importance of free expression, that people feel they can express themselves in the public sphere, that they can express views that are perhaps dissenting to against what the government is saying; people are free to speak out. Unfortunately, when you move towards a system where the government is basically establishing these systems of mass surveillance where they are listening on the phone calls, the email conversations, what people are doing online – you get into a situation then where people don’t feel like they – some people don’t feel they – can speak out. People will worry that this might subject them to surveillance, people are already worried they are being spied on and so privacy isn’t an arcane, academic issue. It’s something that has huge implications for our democracy, for the health of civil rights in Canada and for, really, the future of free speech in this country.

The second thing I would really like to underline is that our privacy rights are really under attack almost as if never before. We have seen a huge transformational change over the last 10-15 years in terms of how people communicate with one another, that people using the internet on a daily basis now; you can almost say people are living much of their everyday lives online. Think about an average day: I don’t know about you but I’ll wake up in the morning – my alarm goes off – first thing I do is I check my emails, check for Facebook messages, and that’s pretty much more or less all day from time to time. That’s pretty much the last thing I do before I go to bed at night as well. People are in the same boat. We live our daily lives online now.

And what I’m leading to there is that, that’s why it’s so worrying that governments here in Canada, in America and over the world are responding to that by actually spying on this marvelous new tool of communication that we have because they are basically spying on people’s everyday lives. The type of information they are collecting on a mass scale can reveal the most intimate details of our private lives even when they are just collecting metadata of our communications that can reveal everything from somebody’s political orientation, their religious beliefs, their medical status, even their sexual orientation, if they are part of a political party – things most Canadians would prefer to keep private. Privacy is super important, our privacy rights are under attack, and it’s really important that Canadians continue coming together from right across the political spectrum to defend privacy.

So in that regard, just to combine the second part of the first question there and question five – so in this day and age, how can Canadians protect themselves – how can they protect their privacy rights – and are there current protections in place that ensure citizens’ privacy rights are being protected and respected?

In terms of the protections we have in place, we do have legislation. We’ve got PIPEDA which applies mostly to the commercial sector, we’ve got the Privacy Act which applies to government entities but unfortunately that legislation isn’t sufficient to protect Canadians from the kind of abuses that we have been seeing from the revelations that have been coming out over the past few years.
It’s also the case that this government, unfortunately, has a terrible track record on privacy. They have brought forth multiple legislative attempts that have the effect of greatly undermining Canadians’ privacy rights. I’m thinking Vic Toews’ Bill C-30 – the government actually had to withdraw that after 150,000 people spoke out against it – it was an online spying bill. Unfortunately, the last year we saw the Justice Minister Peter MacKay succeed in ramming through Bill C-13 which he claimed was a cyberbullying bill but really 90 percent of it was about online spying. It was hugely unpopular – 73 percent of Canadians were against it – and even a huge majority of Conservatives were against it; Peter Mackay didn’t listen, went ahead and rammed it through anyway.

Yes, while there are some privacy protections there in the law but they are not sufficient to tackle the kind of invasions of privacy that we know are happening – kind of in large part thanks to Edward Snowden.

In terms of what people can do to safeguard their privacy. There are two things; we are really big believers at OpenMedia that when people come together, and work together, that we really can bring about positive change. We did succeed in stopping Bill C-30 that was even a worse bill then C-13. We believe that if we keep working together, that tens of thousands keep working on this issue, we can succeed in winning the strong legal safeguards that Canadians need to safeguard themselves from government surveillance.

So first and first foremost, one of the most effective things someone can do to help protect their privacy in the long run is to get involved: sign a petition, write a letter to your local newspaper or contact your MP expressing your concern about what’s been happening because all of that really does make a difference. And in order to really bring about positive change, we need all hands on deck, we need Canadians to get active and get involved.

The second way people can safeguard their privacy given what we know – it’s not surprising that we see more and more people turning to encryption tools… It’s not a surprise that we see so many more people turning to encryption tools. We’ve actually got many popular apps now like WhatsApp which is used by millions of people in the world, and Apple’s own messaging app actually has encryption built in. So it’s certainly not a surprise that we see people turning to those kinds of tools but in the long run we need legislative change – real legal safeguards to protect our privacy.

CCLA: On that note, about these different pieces of legislation that’s passed over the years – with decisions like in R v Fearon that would allow warrantless searches of people’s cellphones – are these long term trends? What are the implications of these decisions for not only Canadians’ due process rights but, of course, their privacy rights?

DC: When the decision in R v Fearon came down, I personally was quite surprised. It was a narrow, 4-3 decision and unfortunately they came down on the wrong side of the argument. They set out criteria for when police could search the cellphones of people they arrest but, really, the criteria they set out aren’t in any way a sufficient safeguard when you actually consider how much personal information people carry about on their phones especially more and more of us are using smart phones – they are basically mini computers. I know myself on my iPhone if someone had access to it, you could tell almost everything about me: where I work, who my friends are, where I like to spend my time – pretty much everything is on there.

I think in some ways the Supreme Court simply failed to recognize that. I know one of the dissenting justices in the minority compared it to – If you search someone after an arrest, you might find their house keys but it doesn’t give police the right to go and search somebody’s house without a warrant. And they quite rightly said, that actually searching the contents of someone’s cellphone is just as invasive a search as searching somebody’s house. At that level of invasiveness, police should be required to get a warrant.

There’s no question that ruling was a setback. There’s nothing to stop Parliament from passing a law forbidding police to make such searches – not holding my breath for that from the current government for obvious reasons – but it’s not like the Supreme Court said that this has to be the case forever more, they just said that it was permissible under the Charter.

The reason I was surprised when this judgment came down because really it’s only a few months since we had a really landmark ruling last June in the R v Spencer case where the justices, quite rightly, recognized that internet activity has a really high privacy expectation attached to it and they basically forbade law enforcement from requesting personal information about Canadians from people’s internet subscribers.

Prior to that ruling, we knew this was over 700,000 Canadians each and every year were having their personal information simply handed over by telecom providers to law enforcement without any warrant or due process whatsoever. Thankfully, the Supreme Court ruling in the Spencer case in June should put a stop to that kind of abuse of the system. The Fearon case was disappointing but it simply underlines the need for a really, I think, pro-privacy legislation to tackle issues like that.

CCLA: With these decisions and the legislation that’s being passed, is this a long term trend do you think?

DC: No, I wouldn’t go so far as to say that. I’m not a legal expert or a Supreme Court watcher… a phrase for people who watch every decision of the Supreme Court for straws in the wind as to which way they are moving. If anything, I would point out the Spencer decision in June was unanimous and the Fearon decision was a much narrower 4-3 ruling. It may be an aberration, it may not be. We will keep an eye on things this year to see which way the wind is blowing there. I draw comfort from the fact that last June, the Supreme Court were really unanimous in ruling that Canadians’ online activity did deserve have a high standard of privacy protection.

Why should the average law abiding Canadian citizen care or be concerned about government surveillance or breaches to their privacy rights if, as one of the arguments goes, they have nothing to hide and therefore nothing to fear from these breaches?

Yes, it’s one of the most commonly made arguments against privacy is this ‘nothing to hide’ argument. I think that the best answer I heard about this is simply that most people do have things they want to hide, and there’s nothing shady about that, there’s nothing wrong with that – it’s just perfectly human to want to have a sphere of your life that you want to keep private. Maybe there are things you are perfectly happy that your close friends know about, but you certainly don’t want have some government bureaucrat sitting at a desk in Ottawa learning intimate details of people’s personal lives. There’s nothing wrong with that. I think at the end of the day as well, when people really think about it, they think about going home from work in the evening, switching on the computer, sending emails, surfing the web. People really don’t like the idea that there’s a government bureaucrat or spy agency bureaucrat watching over their shoulder, collecting information on their activities, storing that information in giant databases where it could be accessed in the future for heaven’s knows what. People really don’t like that idea; so even people who think ‘well, I’ve got nothing to hide’, I think once they think about it a little more and they start unpeeling the onion a little bit more, they realize that actually, they do – people do, almost everyone has things they simply prefer to keep private. As I said, I think that’s a characteristic of humanity going back a millennia…

CCLA: So on that note, as you had mentioned earlier, one of your privacy coalitions was established after the Snowden revelations of widespread government surveillance. Is there still a lot more that Canadians do not yet know about the extent of our government’s surveillance programs?

DC: Undoubtedly, yes. In June 2013, of course, we started getting these really startling revelations from Edward Snowden. Prior to that, people had always suspected that this sort of thing was going on but outside of the privacy community it was difficult to know what exactly was happening. What Snowden did was really blew whistle on these kind of – basically human rights abuses – that the government are engaging in this king of spying on a massive scale. I think it’s pretty clear in a sense, for all that what we know now that’s been quite startling but, I think in a sense, what we’re seeing is really the tip of the iceberg. There’s clearly a lot more that we have yet to find out and just in terms of the volume of the documents that Edward Snowden has brought to light, it’s only really been logistically possible – the media have been covering stories on this and seems like a new revelation every few weeks for the last year and a half – but the volume of the documents is such that it’s going to take longer just to look through what Snowden has revealed and there’s probably more going on than even what those documents lay out.

One interesting thing that I know. What Glenn Greenwald is planning is actually to create a database of the documents that Edward Snowden has released, where researchers around the world would have access to that. I think there will be many more facts about what’s happening probably coming to light as a result when this happens.

From what we’ve learned so far is incredibly worrying. I think there are probably many more revelations to come, and not least about what Canada’s spy agency CSEC is up to.

There’s another question about this argument that there is a necessity to limit Canadians’ privacy rights to ensure their safety, public safety, and national security. Can you speak to that a bit – given recent events in Paris and Belgium – there’s that argument that always comes up is there not a necessity to limit Canadians’ privacy rights in the name of national security?

DC: The fact is there has been a number of studies into this concluding that there is no evidence that this kind of mass surveillance of the entire population has any kind of beneficial impact on helping to stop events like the tragic events we’ve seen in France, Belgium, here in Canada – in Ottawa – a few months ago. There’s no evidence that the answer that people are clearly made any more secure by being subjected to this kind of mass blanket surveillance. Sadly, it’s simply the case that politicians who are pro-surveillance will always seemingly take advantage of tragic incidents like this to try to ram through their extreme anti-privacy agenda. The reason they do this is because they know that online spying is deeply unpopular, it’s unpopular right across the political spectrum.

As I said earlier Peter MacKay’s spying bill was hugely unpopular even among his Conservative Party’s own supporters and they rejected it by over two and half to one. So it seems like governments feel like they need to exploit these kind of attacks and tragedies to try to – really to try and frankly scare people – into signing up to have their most basic privacy rights, their most basic civil liberties stripped away. The good news is, I think, people just aren’t buying that argument anymore. People see that the US in particular went down that route 10-12 years ago and it had a disastrous impact on civil liberties down there. And I think overall, people certainly want measures taken to safeguard lives and make them secure, but there’s no evidence that blanket surveillance is the answer to do that. People want a much more sensible and balanced approach rather than simply writing up a spy agency wishlist and handing them everything they want.

It is really a topical question as well because after the Paris attacks, straight away we have Stephen Harper coming out and promising that new – what they call anti-terrorist legislation – but it seems like it’s a new spying bill in the pipeline likely to be published shortly after Parliament returns on the 26th of this month. Already we see leaks in the CBC about how this new legislation would strip away the basic privacy rights of Canadians. It’s hugely concerning. I’m not buying that argument. I think increasingly most Canadians are not buying that argument too.

CCLA: On that note, recently OpenMedia started their Pro-Privacy Action campaign – I wonder if you could speak more about that campaign?

DC: This is the more recent one the Pro-Privacy Plan. I think we have talked over the course of this conversation about what amounts to a privacy deficit in Canada where our privacy is being undermined in a range of ways, on a number of different levels – whether it is through legislation like C-13 or this upcoming piece of legislation coming in the next few weeks; whether it’s through the activities of the spy agency, CSEC; whether it is through poorly written laws that let telecomm providers hand your private information to third parties. Really, we’re facing a privacy crisis. We need to address this privacy deficit. We’ve certainly been campaigning hard against the online spying bill, campaigning hard against what we know CSEC and the NSA have been up to. But what we really need – that’s important to do – but it’s really important to come up with a positive plan of our own – a positive, pro-privacy plan – that can engage Canadians, that Canadians can get behind that we can take to decision makers in Ottawa and say ‘this is what Canadians want, are you going to support this’ because there’s an election coming up and this is really shaking up to be one of those major election issues.

What we’ve been doing over the last few months, we’ve been running a crash course process on our website openmedia.org/privacyplan. We’ve reached out to Canadians and urged them to take part and really to let us know what they think the priorities for a pro-privacy plan should be. We’re asking their views on a range of issues, we’re asking them to set out what parts of this puzzle are the most important to them; which important problems, people want fixed. The response has been incredible, we’ve had 10,000 Canadians right across the country take part. We have had a number of different organizations rally their members to take part, and you can see, again, that this is something that is happening right across the political spectrum.

One of the most active supporters of this initiative was the National Firearms Association. They wouldn’t normally be seen as a kind of liberal type and they’re supporters are more aligned with the Conservative Party and yet they are passionately pro-privacy, passionately concerned with the impact that the privacy deficit is having on Canadians. We’ve seen 10,000 Canadians from right across the spectrum come together.

Personally, I’ve been spending a lot of the last two weeks sifting through all this amazing feedback from people. We’ve had some really high profile Canadians like Margaret Atwood take part in this process as well. We’re going to go through, analyze all this feedback, pull it together into a pro-privacy action plan, and then we’re going to take it to the decision makers in Ottawa and encourage them to side with Canadians instead of with the spy agencies. That’s our plan in a nutshell.

CCLA: Can you actually briefly discuss what you’ve found so far – what is the top issue, or top priority – that you’ve received from the responses, if you don’t mind?

DC: Overall, what people were saying – the two big things that came up – because we put six priorities and asked people to rank them in order of preference.

The two that were head and shoulder above the others were: firstly, that law enforcement needs to get a warrant if they wanted to access people’s information. That was really an overwhelming choice. People really see that in that process of getting a warrant, you have that judicial oversight, you have the checks and balances that are there to safeguard the privacy of innocent Canadians while letting police do their job where they can prove to a judge that there is sufficient cause to monitor someone. People really want that kind of warrant protections restored. We have seen numerous government attempts to get rid of those warrant protections, and it’s clear where Canadians stand on that.
The second of the key issues that we put out there that was very popular is people really want to end the system of blanket surveillance. The idea that you’ve got to be collecting private information on the whole population, people simply do not support that. People, I think, believe that surveillance – at times, is necessary – but needs to be targeted, it needs to be necessary, and it needs to be proportionate to the risk that we face.

People clearly want to see warrant protections brought in where they are not there at the moment and protect people’s online privacy. And people want an end to the blanket surveillance of their personal information.
CCLA: What would you say is the type of legislative measures we need in place to really ensure that our privacy rights are being respected?

DC: Partly why we are writing this report is to delve into this in some detail. But even just off the top of my head, some of the things we’ll need are we’ll want to overturn quite a lot of what is in C-13, the spying bill passed last year. There’s a few a pages – it’s a 60-something page bill – there were a few pages of common sense proposals to tackle cyberbullying at the start. I think most people would say let those stand but a lot of the rest of that bill simply needs to be repealed. It gives government authority far too much access to Canadians’ personal lives.

One thing in particular it lowered – even where it said police need to get a warrant to access information – it greatly lowered the threshold which police would get a warrant. Instead of having to demonstrate to a judge that they had reason to believe someone was involved in wrong doing, they simply had to prove that they have reason to suspect somebody’s involved in wrong doing. That may not sound very much or a big difference to a layman, to non-legal types like you and me but in legal terms, it’s like the difference between night and day. It makes it far easier for police to simply go around prying into people’s personal lives. That’s certainly one area we would want to see overturned.
The provision in there in C-13 that’s pretty much unconstitutional now – it actually grants telecomm providers immunity for handing people’s personal information over to law enforcement without a warrant which is precisely what the Supreme Court ruled last June as unconstitutional. I don’t know what kind of legal advice Peter MacKay is operating on because it is really irresponsible with taxpayers’ money, if for no other reason, to pass legislation that is clearly unconstitutional and clearly isn’t going to survive a court challenge. That’s just in terms of C-13, those are important things.

There are other areas as well. We are starting to see the first real thought out legislative efforts to rein in CSEC and make them more accountable and transparent to taxpayers. We’ve seen Joyce Murray’s bill last October was a pretty decent start at it, it wasn’t perfect but it was a really worthwhile initiative that sadly the Conservative government killed off.

Certainly an important component of any legislative solution to this is going to be building, I think, off the work of Joyce Murray and others have done to really make sure that we can keep CSEC accountable to taxpayers: that there is rigorous and non-partisan parliamentary oversight of their activities; that they put a stop to blanket surveillance of Canadians; and that they encourage their international partners and make it a condition of CSEC’s cooperation that their partners such as the NSA also do not spy on Canadians. There’s a whole range of issues there. Right now, CSEC frankly seems out of control. Some of the activities they’ve been caught doing like spying on just air travel, on innocent Canadian air travelers going through Pearson Airport were having their information spied on and even their movements tracked around the world for weeks afterwards. They were caught spying on the Brazilians’ mining ministry which is something that has nothing to do with national security. It seemingly had everything to do with conducting economic espionage on behalf of the US which is certainly not something most Canadians would approve of. There’s a whole range of issues that we need to deal with to rein in CSEC and bring them back under taxpayer control.

There are some other things that have cropped up in the course of this consultation is the UK do at least have – although the situation is kind of worse in the UK in a number of ways – but they do now have a surveillance commissioner. He’s pretty toothless, he doesn’t really have any real powers in the UK but at least that office exists. It could be that Canada likely needs something like that only with beefed-up powers to keep tabs on the various surveillance issues and other threats that are out there.

Certainly, there’s really I think any number of different angles to take. My gut feeling is that instead of trying to address the situation bit by bit we probably do need a comprehensive pro-privacy legislation that can cover, really, a range of these topics and restore Canadians’ privacy rights back to a level that Canadians deserve and expect.

CCLA: Is there anything else you would like to add or discuss before concluding?

DC: No, I think we had a fairly comprehensive overview of the whole situation. The biggest thing is that we are a public interest organization and advocacy group, I do sometimes feel when I’m heading into work on the train in the morning that I have one of the most interesting jobs in all of Canada. I’m really inspired day in and day out just by how many Canadians are getting engaged on this issue, by the level of attention it’s getting in the media, by the fact that people are really talking about this. It really is sort of shaping up to become a significant election issue and it’s one where the current government are going to have an awful lot of explaining to do, because what they are doing on the road they have been going on is hugely unpopular with Canadians including conservative supporters.
I think it’s great we’re having such a vibrant conversation. Of course, I would commend the work that the CCLA has done on all of this. You guys have been partners of ours, the Privacy Coalition, since day one and couldn’t appreciate more all the work that Sukanya and the team there at the CCLA do on this issue.