Monday, 16 March 2015

C-51: If You Have Nothing to Hide, You Have Nothing to Fear?

Bill C-51 has captured the attention of a lot of Canadians. Initially, a poll showed that more than 80% of Canadians supported the anti-terrorism legislation. Digging deeper into the poll, it becomes clear that the vast majority of those supporters really knew little or nothing about the bill. It's so easy to support a vague concept. It gets more difficult once you begin to read the law, and read and listen to a variety of experts express their misgivings about it. This, no doubt, was a big part of the government's unseemly haste to get the bill passed into law. The longer it hangs about, the more people will read it, talk about it, write about it, read about it. And more people will understand that this bill, in its current form, is a serious threat to our rights and freedoms as Canadians.

We are told it is for our protection. We are told if we are not doing anything wrong, if we don't have anything to hide, then we have nothing to fear from this enhanced surveillance. We are told we should trust CSIS, the RCMP, Canada Border Services, and Revenue Canada to do their jobs with respect for people's privacy, and without bending or breaking the rules. We should trust the government to act fairly and in everyone's best interests.

That's what they tell us.

There are a few problems with this.

1. "If you are doing nothing wrong, if you have nothing to hide, then you have nothing to fear" This is a very loaded statement. Who decides what is wrong? To many people, protecting unspoiled environment is doing something very right. But the government feels it is very wrong. Many people feel speaking up for human rights is a good thing. But, if you are criticising the government's human rights record, or the record of their close chums in the Middle East, then it is very wrong indeed. 

The bill specifically states that it excludes "lawful advocacy, protest, dissent and artistic expression."

Well, isn't that nice? However, what is "lawful" can change in the blink of an eye. For example, the town of Taber, Alberta, just passed a by-law, drafted by their police force, which makes illegal, among other things, gatherings of 3 or more people which might become disruptive to the public peace. A stroke of the pen is all it takes to change something that has hitherto been quite legal to something illegal, and which might stamp the label of "terrorist" on a regular person following their conscience. Who is to say that once C-51 is passed, Harper will not decide that public gatherings are a threat? I dare say, he likely already considers them a threat but, so far, he has been constrained in his response to them.

Who is to say that supporting an environmental cause, a First Nations issue, a poverty reduction program, or criticising the government, might not be deemed dangerous and illegal in the future? If reposting a link or a tweet critical of the government on some issue, sympathetic to the children of Gaza, outraged by the slaughter of dolphins, might be regarded as potentially extremist and cause CSIS to flag your communications?

Bill C-51 gives the security apparatus the tools to deal with "threats", however vague, in wide sweeping and extremely intrusive ways. This paves the way for a lot of things to become illegal and monitored. As far as protests go, they are already being monitored and the information shared. Last year the Government Operations Centre sent out a directive to all departments, instructing them to compile a comprehensive list of all known demonstrations that may occur. C-51 seems to be partly to bring the laws up to speed with current practices.

There is a flip-side to this "nothing to hide, nothing to fear" notion that pertains to the government's own behaviour. I will address that presently...

2. We should trust all the policing/spying agencies and the government. Shall we deconstruct that? Where to begin? Perhaps we should begin with the most recent intrigue. What is a man, claiming to work for CSIS, doing helping smuggle teen girls from the UK to ISIS? The twists and turns in this are tricky. You can read the news story, in case you missed it, here. In essence, we have a man who was Harper's top bodyguard, promoted (without ANY diplomatic credentials) to the position of Ambassador to Jordan. The Canadian embassy in Jordan is where this alleged CSIS operative who is accused of human trafficking young people to join ISIS gets his marching orders. Coincidence? 

Let's roll back a bit. There is the Maher Arar case. Many may remember how a Canadian citizen was "renditioned" to Syria, where he was tortured. You can read about how the RCMP "shared" information with the CIA, resulting in more than a year of wrongful imprisonment and dreadful torture, right here. The RCMP have been implicated in sexual assault grievances internally, and there is an undercurrent of mistrust between the national police force and the country's First Nations. Allegations of systemic racism and misogyny, etc... If we go back to 1977, we have the McDonald Commission which found the RCMP's surveillance wing engaged in several break-ins; illegal opening of mail; burning a barn in Quebec; forging documents; and conducting illegal electronic surveillance. Hey! They were already doing what C-51 allows way back then, only there was no internet... CSIS was formed, in fact, because it was deemed that the RCMP could NOT be trusted to carry out this sort of work while respecting the boundaries of the law.

Then there is the CRA (Canadian Revenue Agency), now the CPC charity obstruction arm. They have recently received a lot of extra funding to have a special unit go after charities for "political activity". To have charitable status in Canada, an organization can only have 10% of its activities be of a political activism nature. Interestingly, the only charities being audited appear to be those that are critical of the government. They have even gone after birdwatchers for letters expressing concern over bee habitats. Koch brothers-funded right-wing think-tank the Fraser Institute has not been targeted. Coincidence?

And now we come to Canada Border Services. I have not had any personal heinous experiences with the Canadian border security, but we all hear stories. And in Canada there is the recent story of the Quebec man who has been charged and may face imprisonment for refusing to divulge his password for his cell phone.  However, to get a further idea of what can happen to the average person when a border service gets extreme policing powers, one only need look at the American Homeland Security Agency. At US border crossings I have witnessed a lot of people held up for long periods of time (and, it must be said, these were predominantly brown people). I have seen power-tripping in action. An agent was, I don't know, bored, maybe. He asked a traveller what he did for a living (this was as he returned the man's keys after rummaging through his vehicle). The man was a small business owner. "Why do you have so many keys?" The agent demanded. He made the poor man go through each and every key on his key ring, explaining what lock it opened. This, in my opinion, is an extreme abuse of power. There is no law I am aware of that limits the number of keys a person can have on their person. Nor is there any reason to associate having a number of keys with any criminal activity. This was an exercise in making another human being squirm.

And that is the thing. CBS, like the RCMP, CSIS, and the CRA, are comprised of human beings. And these people already have a lot of power. If you come across any of these people in a really pissy mood, you are likely to have a BAD DAY. Apparently the government feels they need more power. There does not seem to be anything in the legislation to provide these people with more training on how to use this power. There does not seem to be any real oversight of how they use their power.

The government line is that SIRC (Security Intelligence Review Committee) will provide oversight. The problem is, SIRC DOES NOT DO OVERSIGHT. On their own webpage, SIRC explains that they review CSIS activities, after the fact. SIRC "examines past operations of the Service and investigates complaints". "Past operations" is critical here. They do not provide real-time oversight, only a review once or twice a year. How long might someone languish in jail because of their political views before it gets on the SIRC radar? Furthermore, several seats on the SIRC board have been vacant for some time. And Harper's chosen man to head SIRC, Arthur Porter, is currently in a Panamanian jail awaiting extradition on fraud-related charges. So this is our "oversight". 

Oh! The CPC says. But there is judicial oversight as well. Before an agent of any of the involved agencies can break the law or violate someone's constitutional rights, they may deem it necessary to get a warrant from a judge. Ok. Let's unpack that. C-51 provides for a warrant to be issued to place someone on a no-fly list. It does not require a warrant for sharing information among departments or to third parties. Remember Maher Arar? 

Indeed, a warrant is only required for the other powers when CSIS deems an act may be illegal or unconstitutional. When CSIS deems... So, in this scenario, the people doing the phone-tapping, break-ins, harassment, disruption, etc. have the final say on whether they need a warrant or not. There are many who have commented on this, "so-called experts" (according to the CPC), including NDP Public Safety critic Randall Garrison , Green Party leader and lawyer, Elizabeth May, and Kent Roach and Craig Forcese, arguably the foremost experts on security law in Canada.  Incidentally, the government refused to allow the Federal Privacy Commissioner, the Canadian Civil Liberties Association, 4 former PMs, and the Canadian Bar Association to testify at the committee hearings on C-51.

So, this seems a pretty sketchy proposition: no one watching the watchers, potential for abuse based on human fallibility, potential for government abuse (remember CRA charity audits?), potential for more and more currently legal things to become illegal...

But let's look at the flip-side now. The CPC was elected in 2006 promising "transparency, openness and accountability". Did they follow through? 

Let's see. Former Parliamentary Budget Officer, Kevin Page, took the Government of Canada to court over their refusal to allow him access to budgetary information he needed to perform his job. Reporters and researchers are often expressing their frustration in placing Access to Information requests, and having to wait months or years only to get a fully redacted (blacked out) document. Suzanne Legault, the Information Commissioner, says the government is starving her department to the point where she cannot address complaints about the government's reluctance to release information. Mike deSouza, an investigative reporter, went so far as write a blog post expressing his frustration with the reticence of the government regarding information requests. This government's paranoia about releasing information resulted in a request for information on a possible new raspberry marketing board yielding a fully redacted document. Raspberries! This is not a code name for some high-tech new weapons system. No. Apparently the little red fruit some put on their cereal is now a matter of the highest security. We don't need to know.

Reporters are unhappy. Researchers are unhappy. The courts are becoming unhappy too. In a recent ruling, an appeal court slammed the Department of Defence for taking 1,100 days to fulfil a request for information. Treasury Board President, Tony Clement, would like to see information limited further. He feels there is a dire threat in letting citizens access government information online.

Research libraries have been closed. Scientists have not been allowed to present their findings to the public or at conferences. The government has taken up the habit of releasing omnibus bills which are so vast, and which change so many laws in different jurisdictions, that few have the time or the capacity to read them fully or comprehend what is in them. Committees meant to study such legislation are stymied by the government majority rejecting key witnesses, limiting time to ask questions, and closing down discussion. These are the actions of a government that really does not want Canadians to know what is in these bills. Indeed, in the 2007 omnibus bill, parliamentarians accidentally let a clause slip by that now allows the government to borrow money without parliamentary oversight.

Even more troubling is the trend to move away from records that can be requested. The Information Commissioner's Office put out an alert that information that should be available on request is being deleted. Indeed, it is now the policy at Revenue Canada (one of the agencies that will have new information-sharing powers under C-51) to immediately delete all text communications. Shared Services Canada, the organization responsible for government information technology services, had been directed to wipe all CRA instant message records last August and no new archiving will take place.  

And this trend is not isolated to the CRA. A recent request for information revealed that the government is moving towards an oral system. Twenty meetings between Kinder Morgan and the federal government in 2013 and 2014 were undocumented. And it wasn't because no one thought to bring a pen and paper, or a laptop, to take minutes. No, this was a deliberate decision to mitigate the risk of the matters being discussed falling into the wrong hands. Those wrong hands? The hands of the people of Canada.

Have you noticed the grand whoop-de-doo going on in the US over Hillary Clinton using her personal email? She has even offered to release her emails. And here, in Canada, electronic information is being deleted as a matter of course and clandestine meetings are being held between the government and big corporations leaving no information trail whatsoever. Why is no one angry about this? 

The CPC ran on a promise of transparency, openness and accountability. They used this to distinguish themselves from the Liberals' "Adscam", and they throw Adscam at Liberal MPs in the House frequently during Question Period, as if to assert their own moral superiority. Never mind that Adscam happened over a decade ago. Never mind that the conservatives' own financial skullduggery far exceeds anything the Liberals did.

And did they keep their promise? Are they transparent? Open? Accountable? And if not, one has to wonder what it is they have to hide.

(Postscript: Announced today: Canada and US customs officials will be working in eachother's countries to pre-screen travellers)

(Update June 17, 2015. The bill has passed and is awaiting Royal Assent. However, the first pre-emptive apprehension and detention without charges happened a full week before Senate voted on C-51. Read about it here. What we need to remember is, even if you are living a monastic life, you are entitled to your own thoughts, and to be able to communicate those thoughts to friends or family without feeling anyone is listening in. Government agencies having access to all your communications and being able to share those communications means that your health, financial and personal information will be out there. If we consider the case of Cindy Blackstock, who found through access to information requests that not only had the government been reading her personal correspondence, internal emails strongly suggest various civil service personnel were making fun of her personal communications. Even if you have nothing to hide, it's pretty creepy to think a bunch of strangers are reading your mail, looking at photos you share, and maybe making you the butt of their internal jokes. Beyond that, C-51 gives the Harper Government and its agencies carte blanche to access your information and communications, alter them, share them with pretty well anyone. They can do whatever they want to anyone (short of raping or killing them, but given the sexual misconduct complaints currently coming forward in both the military and RCMP that doesn't seem particularly reassuring). It is a sledgehammer designed to make the Canadian public keep their heads down and their mouths shut. Cindy Blackstock was targeted for advocating for children. Let me say that again, ADVOCATING FOR CHILDREN. Think on that. Morality, decency, ethics do not come into the equation. It's about power: wielding it and keeping it. And there is NO oversight. This bill makes Harper and his people a law unto themselves.)