Expert Q&A on the growing spy game in Canada

Whether it is the adoption of spyware or the mass collection of personal information by major companies such as Google, Facebook and Microsoft, spying on Canadians is happening with the help of laws that support illegal mass surveillance, says University of Victoria sociologist Midori Ogasawara.

In a new paper published this month, Ogasawara argues that Canada has been endorsing illegal mass surveillance through new legislation disguised to protect citizens in the aftermath of 9/11.

“Canadians are no longer protected by citizenship from being spied on by intelligence agencies,” says Ogasawara, who has interviewed both Edward Snowden and AT&T whistleblower Mark Klein for her surveillance research.

After two decades, Canada continues to follow the global trend toward legislation that makes it easier for intelligence agencies to spy on Canadians, according to Ogasawara, including with Bills C-13 (2014), C-44 (2015), C-51 (2015) and C-59 (2019).

“The Canadian security agencies, such as the Canadian Security Intelligence Service and RCMP, have been spying on Canadians for a long time.”

—UVic sociologist Midori Ogasawara, a former journalist and a global expert in security intelligence and surveillance research

Her paper, “Legalizing Illegal Mass Surveillance: A Transnational Perspective on Canada’s Legislative Response to the Expansion of Security Intelligence,” was published in the peer-reviewed journal Canadian Journal of Law and Society.

Ogasawara’s research was funded by the Banting Postdoctoral Fellowships.

Q: Are Canadians being spied on by their own security agencies?

A: Yes. In the 1970s, a parliamentary committee determined the RCMP was using illegal activities that threatened Canada’s democracy. So, in 1984, the Canadian Security Intelligence Service (CSIS) was created to follow a strict mandate under ministerial control. However, the government’s spying activities basically continued and over time, the intelligence agencies were equipped with new electronic tools.

What is new today is the massive amount of personal data the agencies gather without our consent through the digital communication networks. The Snowden revelations showed Canada’s Communication Security Establishment had secretly deployed an electronic data collection program about travellers through a free airport wi-fi, including locations and internet protocol addresses.

Q. What are your thoughts on the recent revelation that RCMP were likely using the now internationally blacklisted Pegasus software from the NSO group?

A: The secret use of spyware by RCMP clearly demonstrates the ongoing violation of privacy and human rights by security agencies. The RCMP admitted it used software with capabilities that are eerily similar to the now-internationally blacklisted Pegasus software developed by Israel’s NSO Group. What the RCMP call On-Device Investigative Tool, if it is in fact the Pegasus software, is infamous for hunting activists and journalists who criticize authoritarian governments. It is shocking and deeply concerning that Canada is also one of those government customers for invasive spyware, whether it’s NSO or not.  

Q: How do our current laws actually support greater surveillance activities?

A: In the last decade, Canada has passed serial laws to support the expansion of surveillance activities by the security agencies, all under the name of anti-terrorism or protecting Canadians from cybercrime. This is a legislative trend that has been legalizing previously illegal surveillance activities; it doesn’t actually try to stop the illegal surveillance, nor does it protect the rights in the Canadian Charter of Rights and Freedoms.

For example, Bill C-13 legalized telecom service providers voluntarily providing subscriber information to law enforcement without warrants and lowered the standard for judges to order disclosure of communication data. Bill C-44 removed territorial restrictions on CSIS activities and allowed the agency to conduct activities that could even breach the laws of other countries.

Bill C-51 is the most controversial bill. It created a new power for CSIS to take measures to “reduce threats to the security of Canada.” The law gives CSIS a special power to stand above the Charter rights.

Q: How does mass surveillance work in Canada?

A: Mass surveillance activities by security agencies have been deeply hidden in many countries, but Snowden showed people that a significant part of today’s mechanism of mass surveillance is inherently global and collaborative.

Canada is part of the Five Eyes intelligence network—with the US, UK, Australia and New Zealand—that cooperates with the US National Security Agency (NSA) in collecting their citizens' personal information.

For example, the NSA embedded surveillance devices within communication infrastructures such as the transoceanic cables and landing facilities built by the major telecoms. They also have access to the servers set up by the big tech companies, such as Google, Facebook and Apple.

Q: How do crises open the door to greater mass surveillance?

A: Most mass surveillance systems have been developed since the so-called War on Terror began in 2001, after the 9/11 terrorist attack. Governments justified the use of new surveillance technologies, such as fingerprinting identification or facial recognition systems at airports, saying they were solely for the purpose of preventing terrorism.

But surveillance rapidly expands in a time of crisis, and often remains even after the crisis. For instance, novel surveillance technologies (contact tracing apps and vaccine passports) have mushroomed under the COVID-19 pandemic. Medical and health data, the most sensitive kind of personal data, are now shared among many agencies and companies.

Q: What privacy advice do you have for Canadians interested in protecting their personal information?

A: There are a lot of things that you can do personally to protect your privacy, such as rejecting unnecessary cookies when accessing websites and choosing apps that employ end-to-end encryption. But when we all face mass surveillance, we need collective protection by regulatory practices, such as the European Union’s General Data Protection Regulation.

Some say the law may never be able to catch up to the fast pace of technological development, therefore we have no ability to regulate technology. But we still need laws to protect people’s wellbeing.

In fact, we have excellent legal principles in Canada’s Charter of Rights to protect our privacy and other civil liberties, but these principles are not really used to stop illegal mass surveillance activities.

We need to elect more MPs who are keen to stop this trend, empower privacy experts such as the federal and provincial privacy commissioners, and eventually establish an international framework for privacy protection because today’s mass surveillance is international and highly interconnected. The collective approaches can protect everyone.

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