Court Cases

Demanding our Privacy Rights Get a Seat at the…

Brenda McPhail
Director of Privacy, Technology & Surveillance Project
bmcphail@ccla.org

 

 

 

 

CCLA is going to court to reset the Waterfront Toronto/Sidewalk Labs smart city project.  A lot of people say, “wait for the plan, nothing has happened yet. Even if the plan is approved, it will take a long time for shovels to hit the ground.”  We have considered that perspective, and don’t take this action lightly. We are not scared of change or innovation. We are not anti-tech. We are firmly and unapologetically pro-rights and freedoms, and the way this project was conceived puts many of the rights people in Canada value at risk.

The problem is, the process that led to this project in the first place was fatally flawed and then presented to the public as a fait accompli, announced with fanfare by the Prime Minister, then Premier, and Mayor.

The problem is, the last year and a half of consultations haven’t been asking whether Torontonians want Google’s sister company, Sidewalk Labs, to create a sensor-laden “test bed” on the Waterfront, either in the Quayside Neighbourhood or ultimately across the Portlands. They have just been discussing what it should look like and promising us it will be awesome.

The problem is, we increasingly realize comprehensive data collection that permits granular monitoring of people’s activities and behaviour online is harming individuals and groups, infringing human rights, and diminishing human autonomy. So why on earth would we think it’s a good idea to import that big data model into our city streets by embedding multiple kinds of surveillance technologies into our infrastructure?  A city built “from the internet up” sounds more like a threat than a promise.

The problem is, virtually everyone—project detractors and supporters alike—agrees that the laws we have to protect privacy are simply not good enough to safeguard us against the potential harms of this kind of pervasive surveillance infrastructure. Many of the technologies that will facilitate the smart city were unimagined when our laws were written. Data has a different value now, whether it is individualized or aggregate, because it can be used in so many ways that create potential benefits but also raise concrete risks. Voluntary best practices, self-assessments for responsible data use, civic data stewardship models, none of these are bad but they are inadequate. We need, and deserve, accountable, enforceable legislation, not promises of good behaviour.

The list of problems could (and does) continue. Which is why the Quayside project should not.

Our Notice of Application filed today, which we bring forward with co-applicant Lester Brown, a citizen of Toronto, is addressed to Waterfront Toronto and all three levels of government, municipal, provincial and federal. We are arguing that the agreements at the heart of the project are in violation of administrative and constitutional law, and are thus invalid. This project should be reset as a result.

We will keep you updated about this litigation over the upcoming months. For today, we wanted to share the news of its launch.

CCLA is grateful for the work by our amazing counsel, a team from Fogler Rubinoff LLP led by Bill Hearn and Young Park.

Read our filed Notice of Application

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

CCLA Urges Toronto to Delay Purchase of Gunshot-Location Technology…

The following is a re-print of a letter sent to Mayor John Tory by the Canadian Civil Liberties Association on July 22, 2018.

Dear Mayor Tory,

The Canadian Civil Liberties Association has serious concerns regarding the impact of new police surveillance technologies for the city of Toronto. This fundamental shift to state surveillance in Canada could run afoul of constitutional privacy rights, risking the admissibility of any evidence obtained, resulting in untold millions wasted in technology and policing costs. Worse, if placed in poor or diverse neighbourhoods, the new technology may be an unconstitutional sucker punch to racialized communities of Toronto.

The risk of constitutional invalidation requires analysis yet to be done by the City. Give us 10 days to complete and submit a legal risk analysis to the City; this would also permit community feedback, and allow you to share the TPS case for this purchase, before the money is spent. When it comes to expanding public surveillance in Toronto, city residents deserve assurance that the decision to install privacy-invasive technologies is firmly supported by evidence that such an expansion is necessary, proportionate, constitutional, and effective, that the chosen technologies are the correct tools for the job at hand, and that they are designed and will be used in keeping with our civic values and constitutional protections.

In fact, privacy law requires such an approach. Video surveillance cameras collect personal information.  While the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) allows personal information to be collected for the purposes of law enforcement, guidance from the Information and Privacy Commissioner of Ontario specifies that in general, such collection of personal information must be not just useful, but “necessary.” In the absence of data suggesting that the public safety objectives of installing surveillance technologies will be met, and cannot be met using less intrusive means, it is reasonable to question whether the collection is truly “necessary”. Privacy best practice guidelines for video surveillance from both the federal Privacy Commissioner’s office and the Ontario Information and Privacy Commissioner also specify that the impact of the proposed video surveillance on privacy should be assessed before it is put in place, and public consultation should precede any decision to introduce video surveillance. It is unclear if the former has taken place in this instance, and certain that the latter has not.

As for ShotSpotter, this represents an entirely new technology which has not been to the best of our knowledge used in a Canadian context. It is thus entirely untested in relation to its privacy impacts, its potential use as a tool with evidentiary value in our Canadian courts, or the constitutionality of its use more generally. There is also a profoundly practical question yet to be answered: what is its purpose, exactly, and will that purpose be met? Does the City have reliable evidence that ShotSpotter technology is effective at reducing gun violence? This should not be anecdotal, word of mouth stories from the vendor or other individuals with a stake in justifying an investment in the system, but rather, grounded in data and conducted independently of system stakeholders. The only public data we have seen, conducted in 2016 by Forbes with statistics from seven US cities, suggests that 30-70% of alerts led to police being called out with no result. Playing it by ear, apparently, may have more cons than pros, if any.

We also have several specific concerns with terms of the ShotSpotter privacy policy, and with possible gag provisions that may be in the terms of service which would limit the ability of Torontonians to make access to information requests regarding the effectiveness of the technology if it is put in place, upon which we would be happy to elaborate.

Increased surveillance on our streets fundamentally changes our city. It decreases the privacy of every Torontonian walking on our streets. Before we are asked to give up that right, it must be demonstrated that the city and police response is necessary and proportionate and that the decision has been made with full consideration of the potential benefits and substantial risks. Please give us the time to inform your decision.

Sincerely,

Michael Bryant, Executive Director Director
Brenda McPhail, Ph.D. Director Director, Privacy, Technology & Surveillance Project

 

In the news

Don’t make uninformed decisions about guns based on fear, Michael Bryant says

“It’s unnecessary and misguided to submerge our city in video and audio technology, such that we’re constantly under police surveillance, contrary to our constitutional rights to privacy and liberty.”

Civil rights organization urges city hall to delay purchase of gunshot-location technology

Calling the technology a “fundamental shift to state surveillance,” the Canadian Civil Liberties Association is urging city hall to delay the purchase of equipment that detects gunshot locations through a network of publicly placed microphones.

CCLA, criminal lawyers raise red flags as Toronto approves increased surveillance

“Bryant and the CCLA have raised the alarm over the City of Toronto’s plan to increase surveillance and incorporate new audio technology, created by ShotSpotter, that is meant to detect gunfire through microphones placed on the city’s streets.”

Toronto, ShotSpotter, and the normalization of surveillance

“A motion was raised to eliminate this funding, in response to public opposition from groups including the Canadian Civil Liberties Association and a coalition of Black community activists, scholars and artists.”

Toronto approves gunshot-detecting surveillance tech days after mass shooting

“For the CCLA, the inclusion of microphone surveillance in Toronto’s anti-gun violence plan adds an Orwellian dimension to existing concerns that police resources will be deployed disproportionately to minority neighbourhoods.”

Toronto gun violence: ‘A product of what we didn’t do right’

The Canadian Civil Liberties Association also raised concern about the SharpShooter technology, which it said “could run afoul of constitutional privacy rights”.

What would gunfire-tracking technology mean for civil liberties in Toronto?

“This quite plainly constitutes increased surveillance, and the Canadian Civil Liberties Association is already raising concerns about the use of ShotSpotter in this country, noting that if it’s found to have violated Canadian law or Charter guarantees, the evidence it produces could be deemed inadmissible in court.”

CCLA wants Toronto to put a hold on purchasing gunshot-location technology

Michael Bryant, Executive Director of the Canadian Civil Liberties Association, joined The Exchange with Matt Gurney to talk about gunshot-location technology. 

Talk Rights

What’s a VPN? How does it work? And what…

Because the Learn section of TalkRights features content produced by CCLA volunteers and interviews with experts in their own words, opinions expressed here do not necessarily represent the CCLA’s own policies or positions. For official publications, key reports, position papers, legal documentation, and up-to-date news about the CCLA’s work check out the In Focus section of our website.

 

The vast majority of the time on computers or smartphones is spent connected to the internet browsing websites, watching online videos, using social media, etc. An individual’s internet history can reveal some of his or her most personal information, including sexual orientation and political ideology. Despite the interest in keeping our internet activity private, much of it can be logged or monitored to varying degrees by the internet service providers (ISP), law enforcement agencies, and the very websites that we visit. Fortunately, virtual private networks (VPN) can add an additional layer of privacy while browsing the internet. This article explains how VPNs work and explores their privacy implications.

What is a VPN and How Does It Work?

To understand how a VPN service works, it is instructive first to understand the basics of a standard internet connection.[1] A computer connects to the internet via a modem that is often provided by one of the ISPs, such as Rogers or Bell. Each ISP issues a unique series of numbers known as an IP address to each one of their customers’ modems. An ISP is able to trace a modem’s IP address back to the customer under whom the modem is registered. An IP address can also be used by anyone to track the general geographical location of a device that is connected to the internet.

Our interactions with a website typically consist of our modem sending electronic requests to receive information that is stored on the website’s server. This process involves several steps. First, an initial request is sent from our device to our ISP which then routes the request to the web server storing the information. After receiving the request, the web server sends the information back to our IP address. The information transmitted during the entire process can be monitored and logged by the ISP.[2] The web server can also keep a record of the information that it sends to any particular IP address.

A VPN service essentially acts as a secure middle-man between our ISP and the website server.[3] When a VPN service is turned on, our ISP connects our device to a VPN server. Unlike a normal internet connection, all of the information that travels between the VPN server and our device is encrypted and unable to be deciphered by the ISP. This secure connection is known as a “VPN tunnel”. When you use a VPN, an encrypted request is routed by the ISP directly to the VPN server— not to the web server. After receiving the request, the VPN server sends its own request using a new IP address to retrieve the information from the website’s server. From the perspective of the web server, it is the VPN’s IP address—not the IP address of the end user— that is requesting the information. The VPN server encrypts the information received from the website’s server and sends it back to our IP address.  Not only is the ISP unable to decrypt the information, but since the encrypted information is sent directly from the VPN to our device, the ISP is also unaware of the website from which the information originated.

Privacy Implications 

There are three main privacy implications of using a VPN while browsing the internet. First, to comply with the Copyright Act, Canadian ISPs keep a temporary record of each IP address that it assigns to a modem.[4] In addition, an ISP is able to maintain a record of the websites visited and the content downloaded by an IP address, although the extent to which any ISP engage in such practices is unclear and it is unlikely that an ISP is actively monitoring their customer’s internet activity. Nonetheless, the information transmitted along a standard internet connection can be monitored and made available to law enforcement upon a warrant. By using a VPN service, one’s internet activity will be encrypted and unable to be deciphered by the ISP. From the perspective of an ISP, the IP address assigned to a customer’s modem is simply receiving encrypted data from a VPN server. It should be noted, however, that just as an ISP is ordinarily able to monitor the information received from a web server, the VPN service is able to similarly monitor the requested information that it receives from the web server. This information is only later encrypted and sent from the VPN server back to our device. Nevertheless, many VPNs have an express policy of not recording a user’s internet activity (but make sure you read and understand that policy when you’re choosing a VPN!).

Second, unlike the United States, Canadian internet service providers are not able to share a customer’s personal information such internet history with third parties without their express consent. However, laws are often subject to change, and it is entirely possible that ISPs in the future will be able to share such information without consent.[5] Since a VPN ensures that a user’s internet activity is encrypted, ISPs will be unable to sell information about a customer’s internet history.

Finally, websites themselves maintain a record of the IP addresses that visit their site. The IP address, in turn, allows these websites to track the general location of the user’s device. By using a VPN service, it is the VPN’s IP address—not the user’s own IP address—that is requesting the information from the web server, effectively masking the identity of the end user.

Just as we may expect mail to remain private from mail carriers or phone conversations to remain private from telecom providers, there ought to be an expectation that our internet activity to remain private. Although the extent to which an ISP monitors and records one’s internet activity is unclear, the fact that ISPs are often not forthcoming and transparent about their practices is troubling. For those who are privacy conscious and want their internet activity to remain private, a VPN is a useful tool to add an additional layer of privacy while browsing the internet.

 

 

[1] For more information see Shuler, Rus. How Does the Internet Work? Pomeroy IT Solutions, 2002, web.stanford.edu/class/msande91si/www-spr04/readings/week1/InternetWhitepaper.htm.

[2] Websites that use encryption such as HTTPS will encrypt the data that is sent to and from the website and the user’s device. However, unlike the case with a VPN service, an HTTPS encryption does not prevent an ISP from recording that your IP address has visited the site. is still able to monitor the fact that your device is connected to the website.

[3] For more information see Tyson , Jeff, and Stephanie Crawford . “How VPNs Work.” HowStuffWorks, 14 Apr. 2011, https://computer.howstuffworks.com/vpn.htm

[4] The current law is unclear as to whether Canadian VPN service providers are required to retain IP address logs. Many VPN’s have an expressed policy of not maintaining a record of the customer’s IP addresses.

[5] For information about the recent American Senate vote to repeal an FCC ruling preventing American ISPs from selling their  consumer’s data to third parties see Fung, Brian. “What to Expect Now That Internet Providers Can Collect and Sell Your Web Browser History.” The Washington Post, 29 Mar. 2017, http://www.washingtonpost.com/news/the-switch/wp/2017/03/29/what-to-expect-now-that-internet-providers-can-collect-and-sell-your-web-browser-history/?utm_term=.603c26013a26.

For more information regarding the situation in Canada see Braga, Matthew. “No, Your Canadian Internet Service Provider Can’t Sell Your Information as in the U.S.” CBCnews, CBC/Radio Canada, 31 Mar. 2017, http://www.cbc.ca/news/technology/us-fcc-internet-privacy-legislation-marketing-ads-canada-1.4046512.

 

 

 

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