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CCLA Joins Rights Groups challenging mass surveillance in Europe’s…

(Image: Big Brother Monitoring. Master Tux, Creative Commons)

 

  • Human rights and privacy groups seek firmer ruling on bulk surveillance, appealing landmark judgment

Following last year’s victory in which the European Court of Human Rights (ECtHR) found the UK’s historic surveillance regime was illegal, a coalition of human rights groups, including CCLA, will today ask the Strasbourg Court’s Grand Chamber to go further in its judgment.

This is a case that has global implications for surveillance on the world’s communication networks. CCLA is participating because messages from people in Canada are regularly caught up in this bulk collection, violating the privacy of our personal communications without suspicion, and largely without meaningful recourse.

Last September, after a five year legal battle, the ECtHR found the UK’s historical bulk interception regime (under the Regulation of Investigatory Powers Act 2000) violated the right to privacy protected by Article 8 of the European Convention on Human Rights and the right to free expression protected by Article 10.

Today, CCLA and six of our partner groups from the International Network of Civil Liberties Organisations (INCLO) led by Liberty, join Amnesty International and Privacy International in seeking to build on that victory. We are arguing at the Court’s highest chamber that bulk interception of communications inherently violates our privacy and freedom of expression. We are also arguing that the regime for intelligence sharing between the UK and foreign states is illegal, as the UK Government can, in sharing intercepted material, bypass the safeguards in place for when it itself intercepts communications.

Only a small number of the most significant cases get heard at the Grand Chamber. In the light of rapid technological change and the intrusiveness of bulk surveillance, the coalition is urging the Court to reassess the lawfulness of carrying out mass surveillance on ordinary people not considered a threat.

Brenda McPhail, Privacy, Technology & Surveillance Director, CCLA said: 

“Mass surveillance simply is not justifiable in any rights-respecting democracy. CCLA stands with our international partners in this case, fighting for residents in Canada and around the world against the ravages to privacy and free expression rights created by bulk capture of our personal, private communications.”

 

 

Megan Goulding, lawyer at Liberty, said:

“Bulk surveillance powers mean that UK government agencies are spying on ordinary people on an enormous scale, sweeping up and storing their private communications and data.

“These powers have already been found to be illegal by the Court, and today’s hearing is another important step towards ensuring our surveillance regime respects our fundamental rights to privacy and free expression.

“Our surveillance regime must be led by suspicion rather than subjecting us all to intrusive state monitoring which undermines our freedom.”

 

The case

On 13 September 2018, the ECtHR ruled that UK laws enabling mass surveillance violate our rights to privacy and freedom of expression.

However, the judgment did not go far enough with regard to the unlawfulness of bulk interception powers and the fundamental shortcomings in the regime for intelligence sharing between the UK and foreign states. The coalition of rights groups therefore requested the European Court to have the case referred to its highest judicial bench, the Grand Chamber.

In this appeal, we are seeking a final ruling that such bulk interception powers inherently violate our rights to privacy and freedom of expression. We are also arguing that the regime for inter-state intelligence sharing based on such intercepts is illegal, because it allows the UK to circumvent the safeguards in place for when it carries out interception, despite the fact that the intrusion into an individual’s privacy is identical in each case.

Elizabeth Farries, Surveillance and Human Rights Program Manager, INCLO said: 

“Why should we have to hide from spying governments? Recognised under numerous instruments, treaties and international norms, privacy is our foundational right upon which many of our associated freedoms operate. Led by Liberty, seven INCLO members from across the globe join this challenge to protect the private communications rights of hundreds of millions of people.”

Background

This case began in 2013, following Edward Snowden’s revelations that the UK Government was secretly intercepting, processing and storing data concerning millions of people’s private communications, even when those people were of clearly of no intelligence interest.

Snowden also revealed that the Government was accessing communications and data collected by the USA’s National Security Agency and other countries’ intelligence agencies.

All of this was taking place without public consent or awareness and with no proper safeguards. The information collected and stored by the Government can reveal the most intimate aspects of a person’s private life – including who they are, where they go, who they contact, which internet sites they visit, what their opinion is, etc.

Caroline Wilson Palow, General Counsel, Privacy International said: 

“Should the government be allowed to snoop on your digital communications even if you’re not suspected of any crime? Just because the technology enables them to, should they be allowed to do this at an unprecedented scale, snooping on potentially millions of people? We have been arguing for several years that the answer to both these questions is a resounding no.

” Last year the European Court of Human Rights ruled that parts of the UK’s historic mass surveillance regime were unlawful. Today we are asking the Grand Chamber to build on last year’s judgment and say once and for all that the UK government’s bulk interception of our digital communications is a violation of privacy and freedom of expression, as protected by Articles 8 and 10 of the European Convention on Human Rights”

Counsel for the case are Ben Jaffey QC and Gayatri Sarathy of Blackstone Chambers, and David Heaton of Brick Court Chambers.

Court Cases

CCLA at the Supreme Court: The Worst Carding Case…

Noa Mendelsohn Aviv
Director of Equality Program
mendelsohnaviv@ccla.org

 

 

 

 

On Friday May 31st, the Supreme Court of Canada is going to release its decision in a case involving 4 young black men and one young Asian man carded in a private backyard!

“Carding” and “street checks” are just some of the terms used to describe the practice by certain police officers and police services of approaching, stopping and questioning people on the street (usually racialized young men) for no lawful purpose, asking them personal information, demanding to see ID, and then entering all this information into a police “street check” database.

In the case of R v Le which is being decided on May 31st, the police went even further when they walked, uninvited, into a private backyard and began to ask questions of 5 young racialized men who were in the yard and doing nothing wrong according to the police officers’ own testimony.

The officers tried to claim at trial that they felt justified because they saw no gate on the yard (the Ontario Court of Appeal fortunately did not accept this justification).  Or, as we suspect, the problem is systemic or actual racism, in a criminal justice system that allows police to approach and question young men as a matter of routine, where there are inadequate rules prohibiting police from treating innocent people as suspects and violating their rights. Perhaps it simply never occurred to the police not to, even as they entered private property.

Either way, the Canadian Civil Liberties Association went to the Supreme Court of Canada to condemn the officers’ conduct in the case. CCLA has been advocating for years against carding, and demanding clear rules that prevent police from approaching, stopping and questioning individuals who are not suspected of being connected with a crime.

CCLA intervened in the R v Le case to address the importance of privacy, the reasonable expectation of privacy in a friend’s backyard, and the right of all people to privacy, including those who are low-income and racialized. CCLA also intervened to ask the court to establish in clear terms which police stops must be recognized as arbitrary detention. CCLA explained that even a brief encounter with police can be intimidating, humiliating and frightening – as most people who have been pulled over can confirm. This is only exacerbated when the violation includes trespass onto personal property – sending a strong message that the officers may not be concerned about the law or individual rights. And a police encounter like this is particularly concerning when the individuals doing nothing wrong are racialized – and the stop smacks of discrimination.

CCLA was represented by pro bono counsel Danielle Glatt (Paliare Roland) and Kate Robertson (Markson Law).

On Friday May 31st, the Court has an opportunity to create better privacy protections, and better protections against carding.

CCLA awaits the decision and is available for comment any time after its release:  media@ccla.org.

 

You can read our factum here and our earlier summary of the case can be read here.

Uncategorized

CCLA Commences Proceedings Against Waterfront Toronto

Today, the Canadian Civil Liberties Association along with co-applicant Lester Brown, commenced proceedings against Waterfront Toronto, and all three levels of government. We are seeking a reset of the Sidewalk Toronto project. Court document below:

Notice of Application, CCLA

 

“The Google-Waterfront Toronto deal is invalid and needs to be reset. These agreements are contrary to administrative and constitutional law, and set a terrible precedent for the rest of this country. Unlawful surveillance is wrong whether done by data profiteers or the state. We all deserve better from our federal, provincial and municipal governments,” says Michael Bryant, Executive Director and General Counsel, Canadian Civil Liberties Association.

Video below of press conference at Queen’s Park media studio, April 16, 2019:

To arrange interviews or obtain information for release, please contact our media team at:

media@ccla.org

416-646-1404

Media kit

News and Analysis

Open Letter from CCLA: Calling for a Reset on…

OPEN LETTER 

March 5, 2019 

The Rt. Hon. Justin Trudeau
Prime Minister of Canada
House of Commons
Ottawa, Ontario K1A 0A6

The Hon. Doug Ford
Premier of Ontario
Legislative Building
Toronto, ON M7A 1A1 

His Worship John Tory
Mayor of Toronto
100 Queen St W,
Toronto, ON M5H 2N2 


RE: Waterfront Toronto Reset

Dear Prime Minister, Premier and Mayor, 

We are writing to you about the Smart City initiative for the Toronto Eastern Waterfront, the Quayside Sidewalk Toronto project. The Canadian Civil Liberties Association (“CCLA”) believes that your decisions and activities, through Waterfront Toronto [1] and otherwise, are unconstitutional and contrary to statute, common law and administrative law. We respectfully submit that it’s time for a reset of this projectHit CTRL-ALT-DELETE on Sidewalk Toronto:  beforbidding and procurement, you must first legislate protections for the people from the risks of surveillance capitalism on our streets.   

CCLA is an independent, non-partisan, national organization that’s been promoting and defending Canadians’ rights and freedoms since 1964. Small but mighty, we have sought to insert ourselves into every major civil liberties issue facing Canada for the past half century. CCLA, on this issue, through this letter, stands on the shoulders of countless citizens, activists, experts, and journalists in Canada and abroad, on the streets, through public forums, committee meetings, online and on campus. 

CCLA submits that Sidewalk Toronto and the Quayside project should be reset, with your creation,’ [2] Waterfront Toronto, issuing no new Quayside RFP until all three levels of government, after adequate public consultation, have established digital data governance policies for the appropriate collection, ownership, use and residency of personal information and other data obtained from public places in any embedded sensor laden, data harvesting Smart City contemplated for QuaysideThis was the path trodden by Smart City Barcelona, which changed course in 2011, rendering it a global leader for citizen-focused Smart Cities.  

Not for the first time, private enterprise got ahead of you and strove to exploit an unregulated frontierMeanwhile, the legal vehicle you created to be the “public advocate and steward,” [3] Waterfront Toronto, put the cart before the horse.  Powers were given away to a private enterprise that cannot legally be given away.  Waterfront Toronto also exceeded its own powers under its governing statute. Waterfront Toronto was supposed to be a real estate revitalization company, not an unelected, unaccountable Data & Privacy Czar, lacking any such authority from Parliament, Queen’s Park or City Hall.   

The constitutional problem boils down to outsourcing the public interest to a private company without any democratic or legal authority.  That in turn risks civil liberties within a free and democratic society.  Only elected legislators have the constitutional authority to enact civil liberties protections in law.  But you left that task to a subsidiary of Alphabet Inc.  Protecting the public interest, forging the rules of the road for data, surveillance and privacy within a Smart City:  that’s your constitutional job, as leaders of our three levels of government.  The constitutional error that arises with outsourcing the public interest is manifold but it’s akin to a government retaining Exxon to design a country’s energy policy. 

What are the Charter risks?  We believe that the Waterfront Toronto-Sidewalk Labs Framework Agreement and the Plan Development Agreement (“PDA“) contemplate a non-consensual, state-authorized mass capture of Canadians’ personal informationAs such, the Charter is engaged and breached: namely, Canadians’ right to privacy under the Chartersection 2 (fundamental freedoms of assembly and association), section 7 (life, liberty and security of the person), and section 8 (unreasonable search or seizure). The PDA also violates privacy statutes applicable to Waterfront Toronto, which is not above the law.   

The CCLA is contemplating litigation in this matter because your respective governments behave as if unaware that, constitutionally, the emperor has no clothesCanada needs you to develop the federal, provincial and municipal policies for a Smart City (whether at Quayside or elsewhere in Canada) before the procurement process, not after. As suchCCLA argues for a reset of Sidewalk Torontorather than a scrapping of Smart City altogether.  A change of course is needed. Ask not what your country can do for technology – ask what technology can do for your countryIf you won’t reset through government or by elected assembly, civil society may need to through the courts. 

With this open letter to you, we are also asking the public to reach out to their democratic representatives, if they agree, to hit the reset button on Smart City Toronto. In the spirit of public debate, we are also encouraging your governments to respond to this letter, and debate these ideas in your legislative assemblies.   

Are you contemplating such a reset? If so, when and how?  If not, why not?  Thank you for considering the foregoing, and we look forward to your response. 

 

Sincerely, 

 

Michael Bryant
Executive Director & General Counsel
Canadian Civil Liberties Association

Dr. Brenda McPhail
Director of Privacy, Technology & Surveillance
Canadian Civil Liberties Association 

 

———

[1] Formally the “Toronto Waterfront Revitalization Corporation”, operating as “Waterfront Toronto”and self-described as follows: “Waterfront Toronto is the public advocate and steward of waterfront revitalization. Created by the Governments of Canada and Ontario and the City of Toronto, Waterfront Toronto is mandated to deliver a revitalized waterfront” [emphasis added]. https://www.waterfrontoronto.ca/nbe/portal/waterfront/Home/waterfronthome/about-us

[2] Ibid.

[3] Ibid. 

 

News and Analysis

Shotspotter is not coming to Toronto, and that’s a…

CCLA argued against installing these audio surveillance devices, designed to detect gunshots and direct police deployment, from the beginning. We wrote to the Mayor. We spoke to the Toronto Police Services Board. And we spoke out publicly. This time, our voice–and the voices of others who also raised principled objections to purchasing and installing this technology in our community–was heard.

The Toronto Police Service has come to the same conclusion we reached in our initial assessment: there were potentially serious risks to constitutional rights, risks and uncertainties when it came to using such information in court, and risks with allowing a private sector vendor to own surveillance data collected on Toronto streets.  Add these to the risks of discrimination inherent in adding essentially a mass surveillance tool into specific communities and it was even more clearly not the right tool for Toronto.

Rejecting ShotSpotter because of the impact it would have on our Charter-protected rights is the right call. We’d argue that all state surveillance tools and practices should be subjected to similar analyses, up front, before decisions are made.

But for now, this is a win for Torontonians and for residents of other Canadian cities whose police forces can learn from Toronto’s experience. In the midst of last summer’s fear after some terrible tragedies, ShotSpotter was held out as a technological fix, but the analysis of whether it was the right tool at all, whether it would work as well as the sales pitch promised, and whether the made-in-America solution would address our different Canadian problems was cursory. In other words, the decision to buy it was ridiculously rushed.

Thankfully, the consultation and analysis we pushed for led to sober second thoughts about whether it was the right technology to install on our streets. The decision was it was not.

It’s a small victory against surveillance, but it’s a victory. This is what we were fighting for.


You can read more on Toronto’s decision to abandon the ShotSpotter Project below:

https://www.cbc.ca/news/canada/toronto/toronto-police-scrap-plans-to-acquire-controversial-gunshot-detection-system-1.5019110

https://www.theglobeandmail.com/canada/toronto/article-toronto-police-end-shotspotter-project-over-legal-concerns/

 

You can also watch CCLA’s guide to ShotSpotter