They say a week is a long time in politics; a year is certainly a long time in security. Every time we turn around there is yet another revelation about how governments and criminals are invading our privacy and stealing our information. The capabilities they demonstrate are frightening. Yet they create a big splash in the media one day, and by the next nobody seems to care.
We hear the messages frequently: The Internet was not designed for security. Email is less secure than sending a postcard. Visits to web sites can be intercepted and requests diverted to download malware. Corporations face targeted attacks on a daily basis, while governments collect massive amounts of data on virtually everything we do online. It’s easy to understand why many of us have simply come to accept that we have little privacy.
The problem is that much more than our privacy is at stake. As Brazilian president Dilma Rousseff told the United Nations general assembly last year, “In the absence of the right to privacy, there can be no true freedom of expression and opinion, and therefore no effective democracy.” While the Canadian Charter of Rights and Freedoms says that everyone has “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”, it is difficult to fully exercise that right while our private communications are being monitored.
Governments have developed the capability to intercept virtually every form of communication. They can track the location of our mobile phones, determine who called who when, read our email, track our web site visits, monitor our use of social media, surreptitiously redirect our communications, and, if they feel the need for more, infect our computers with malware to spy on us.
It is naive to believe that governments can be trusted to only use their capabilities against terrorists and criminals. Evidence that they are being used for economic espionage is readily available, and governments have been caught targeting foreign politicians. Would it really surprise anyone if journalists and political opponents were targeted as well?
Mass surveillance is about power, and in the words of Lord Acton, “Power corrupts, andabsolute power corrupts absolutely.” To preserve privacy, freedom, and ultimately democracy we must ensure that surveillance capabilities are subject to appropriate oversight and that the interception of any private communication — regardless of whether it originates and terminates inside or outside our country — is subject to judicial oversight. Allowing government agencies to invade a person’s privacy without first demonstrating probable cause to a judge is not acceptable in a free and democratic society.
There is no doubt that, in today’s hyper-connected society, the ability to monitor the movements and communications of suspected terrorists, spies, and other criminals is essential for law enforcement and national security. However, we do not allow police officers to conduct random searches of people, their cars, and their homes. Such activities impede our right to be free from unreasonable search. Our electronic communications, including metadata, deserve the same protection.
On one hand, courts on both sides of the border are deciding in favour of privacy. For example, the United States Supreme Court held in June 2014 that “police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.” The same month the Supreme Court of Canada ruled that police need a warrant to obtain basic subscriber information from an ISP. “It would be reasonable for an Internet user to expect that a simple request by police would not trigger an obligation to disclose personal information,” the court said. “When defining the subject matter of a search, courts have looked not only at the nature of the precise information sought, but also at the nature of the information that it reveals. In this case, the subject matter of the search was not simply a name and address of someone in a contractual relationship with the ISP. Rather, it was the identity of an Internet subscriber which corresponded to particular Internet usage.”
On the other hand, Canadian Prime Minister Harper’s Conservative government clearly wants to move in the other direction. Bill C-13, currently before the House of Commons, proposes additional police powers and specifically authorizes the warrantless activity that the Supreme Court of Canada has ruled violates the Charter of Rights and Freedoms.
The private sector also shares the blame for the abysmal state of privacy in Canada. For example, the technology to provide secure, end-to-end messaging has existed for more than twenty years, yet the vast majority of our emails remain in plain text. Even if governments refuse do the right thing, it is possible to design systems that place users in control. As owners of our private information we must be given the ability to say no to “voluntary” searches and hold law enforcement agencies accountable for their requests. Telecoms and ISPs have every incentive — including financial ones — to give law enforcement whatever they ask for. The keys to our private communications must be removed from their hands.
Many of us fail to see the big picture, adopting the, “I have nothing to hide, therefore I don’t care if the government looks” position. In the words of United States Supreme Court Justice Breyer, “the complexity of modern federal criminal law, codified in several thousand sections of the United States Code and the virtually infinite variety of factual circumstances that might trigger an investigation into a possible violation of the law, make it difficult for anyone to know, in advance, just when a particular set of statements might later appear (to a prosecutor) to be relevant to some such investigation.” [http://www.law.cornell.edu/supct/html/98-93.ZD.html]
Security researcher Moxie Marlinspike explains, “If the [US] federal government had access to every email you’ve ever written and every phone call you’ve ever made, it’s almost certain that they could find something you’ve done which violates a provision in the 27,000 pages of federal statues or 10,000 administrative regulations. You probably do have something to hide, you just don’t know it yet.”
So why should you care? If you value freedom and democracy you must care about privacy. Perhaps you’re not a target today, but you could be tomorrow.
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