How relevant is Bill C-51

In his article, “Do Tech Companies Owe it to the Public to Cooperate with Surveillance?” (The Atlantic, March 9, 2015) George Washington University Professor Amitai Etzioni states unequivocally that “some surveillance is justified, as long as it is in line with laws enacted by Congress and guidelines approved by the courts, and the implementation of these measures is properly supervised by independent oversight authorities such as inspectors general, the Privacy and Civil Liberties Oversight Board, and congressional committees.”

That’s hardly reassuring.

To say that some undefined measure of surveillance is fine as long as it is enacted by the US Congress (or equivalently in the Canadian Parliament) ignores the fact that merely enacting laws according to established processes does not automatically make them good laws or necessary laws. It’s also important to remember that laws do not prevent conduct. Clearly worded laws indicate what is permitted and prohibited.

On the other hand, laws written using vague language, that will inevitably have to be adjudicated by the courts, have the very real potential to undermine the effectiveness of existing laws and cause significant damage to people who have committed no crime and should have no reason to fear for their safety or freedom. Bill C-51 (the Canadian government’s latest omnibus bill ostensibly intended to protect against terrorism) is such a law. Its provisions can offer some protection against unsavory actors and permit law enforcement to carry out their role with greater ease. The primary section of the Bill allows for sharing all manner of information about everybody within Canada, and “using that information, or further disclosing it to any person, for any purpose. (s.6)”

Bill C-51 also prohibits an unlimited range of activities if they undermine the “sovereignty, security or territorial integrity of Canada or the lives or the security of the people of Canada” (s.2) and permits investigation of the “activity of any person may constitute threats to the security of Canada” (s. 8, 6 an 8).

Those same provisions can be interpreted and put into action to condemn people across Canada simply because something they did or said is interpreted as potentially having a detrimental impact on the nation’s economy, security, or infrastructure. In other words, just about anything at all – including protests, speech and labor strikes. Thus law-abiding citizens would be at risk of persecution and incarceration for merely expressing their opinions (a constitutionally-protected freedom) if those differ from the views of the ruling party.

Cardinal Richelieu’s words from 500 years ago are still relevant: Give me six lines written by the most honorable of men, and I will find an excuse in them to hang him.

As to Court protection, warrants — issued by secret courts based on secret proceedings with sealed evidence — to permit otherwise illegal activity is hardly reassuring.

The assurance of Court oversight is equally vacuous. Just think of how many lives can be (are) irreparably harmed in the 8 to 10 years (or more) it takes for court challenges to reach the Supreme Court. Even if the court does eventually rule a law is “unconstitutional,” that does nothing to ameliorate the damage already done to countless individuals in the interim.

Independent oversight? Canada’s Prime Minister has scoffed at the requests for additional and effective oversight as needless red tape. The PM has also dismissed the almost unanimous condemnation of Bill C-51’s vague language, its lack of effective oversight, and the potential for egregious infringement upon civil liberties that can ensue. Former Prime Ministers, Justices of the Supreme Court of Canada, Canada’s former and current Information and Privacy Commissioners, academics, lawyers, civil liberties groups, industry associations, professional associations, politicians and citizens across the country have articulated many of the significant dangers of Bill C-51 and demanded changes that would preserve and protect Canadians’ privacy and civil liberties while facilitating lawful investigation and prosecution of truly unlawful conduct; and the answer that the PM and his ministers have given is that there already is oversight, and that is plenty.

The existing independent oversight in the form of a report to Parliament/Congress at some point after-the-fact, with no stipulations as to what information or level of detail is to be included, is vague and offers no real scrutiny or accountability. And it’s inevitable that any such report would be extensively redacted to guard against operational or tactical details being divulged, since that could be construed as potentially undermining national security.

Bill C-51 will inevitably create a headache for anyone who submits an Access to Information request, and for the responding organizations. When the State and its agents are allowed to secretly monitor, capture, and share data and communications, there will never be a way to know whether, when or to whom information has been transferred or for what purpose.

As to those who claim “if you’ve done nothing wrong you have nothing to fear” I would ask that they ask themselves: How well did the laws, the oversight mechanisms and the court protections that enabled McCarthyism, Stassi, NSA, secret files of J. Edgar Hoover and those amassed by the FBI and RCMP on innocent citizens (it’s a very long list) protect law-abiding citizens who’d done nothing wrong yet were falsely accused and persecuted to support the political objectives of a person or party?

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