C-51 and the Humpty Dumpty doctrine

Published in TheGazette, 17 March, page A21.

In 2013, Edward Snowden and the Guardian newspaper revealed the extent to which the US National Security Agency is able to track someone’s calls, read emails and SMS, hack into a smartphone and computer, and monitor “nearly everything a user does on the internet” ‑ even web browsing. NSA counterparts in Canada and other “Five Eyes” countries reportedly have similar capabilities or have information sharing agreements with NSA.  

Bill C-51 would now “encourage and facilitate” information sharing between our Communications Security Establishment and nine other GoC agencies, including CRA. Information can be shared to protect Canada against activities that “undermine its security”. Such activities do not include “lawful advocacy, protest, dissent and artistic expression”.

Surely GoC agencies should have the means to protect Canada against terrorism. But the definition of “activities that undermine security” is too broad. It includes those that would “unduly” influence a government by “unlawful” means. Sounds reasonable, eh? But suppose a local whistle-blower like Snowden were to give the press a trove of documents pertaining to some domestic policy. Suppose that leak, without revealing any “wrongdoing” as it is restrictively defined in law, made a government look bad in the court of public opinion and compelled it to change policy. Under C-51, such an unlawful act could be construed as a means to “unduly” influence government.  GoC agencies would be allowed to pre-emptively monitor a suspect’s electronic devices and communications, view his tax and financial data. And effectively censor him.

Why should law-abiding, order-loving citizens be concerned? “If you’re not doing anything wrong, you have nothing to worry about” is the standard saw. The trouble is: “who determines what’s right and what’s wrong”? Lawmakers and the courts you might answer. But history shows that security and law-enforcement agencies have repeatedly overstepped the law, and misused the surveillance technologies of their day.

In the 1960s, Edgar Hoover’s FBI had a program to survey, infiltrate, discredit, and disrupt domestic political organizations that it deemed “subversive”. Its stated motivation was "protecting national security, preventing violence, and maintaining the existing social and political order." The program was secret until 1971, when a self-styled “Citizens' Commission to Investigate the FBI” burglarized a FBI office, stole dossiers, and exposed the program by passing material along to news media.

In 1975, the Church Committee found that “Too many people have been spied upon by too many Government agencies and too much information has been collected. The Government has often undertaken the secret surveillance of citizens on the basis of their political beliefs, even when those beliefs posed no threat of violence or illegal acts on behalf of a hostile foreign power. The Government, operating primarily through secret informants, but also using other intrusive techniques such as wiretaps, microphone "bugs", surreptitious mail opening, and break-ins, has swept in vast amounts of information about the personal lives, views, and associations of American citizens. Investigations of groups deemed potentially dangerous -- and even of groups suspected of associating with potentially dangerous organizations -- have continued for decades, despite the fact that those groups did not engage in unlawful activity.” Déjà vu.

Okay then, but that’s US lore. Here in Canada there’s no such abuse, right? In the late 1970’s, the McDonald Royal Commission investigated the RCMP after it was learned that its “Security Service” had stolen the Parti Québécois’ membership list, illegally opened mail, forged documents, and conducted illegal electronic surveillance, among other “measures” to protect Canada against the separatist threat.  

Some will say this is all history and that the problem has been fixed. In 2013, the US Internal Revenue Service admitted it had targeted political groups for closer scrutiny based on their political themes, especially conservative groups with terms such as "Tea Party" in their names.

These examples show that state agencies can target groups in all quarters of the political spectrum. When a state feels threatened, you will find a zealous officer or agency ready to construe a political challenge into a security threat.  

Perhaps it was Humpty Dumpty in Alicein Wonderland who put it best: "When I use a word, he said in rather a scornful tone, it means just what I choose it to mean—neither more nor less. The question is, said Alice, whether you can make words mean so many different things. The question is, said Humpty Dumpty, which is to be master—that's all." (Lewis Carroll, 1872)

Like beauty, the definition of what constitutes a threat to security is in the eye of the beholder. The line between lawful dissent and unlawful, undue influence is not fine, it’s blurred. Those who “not wittingly” follow the Humpty Dumpty doctrine of accountability need the cover of vague language like that in C-51.

Whatever is left of our privacy, security agencies now have the surveillance tools, analogous to “weapons of mass destruction”, to annihilate it. According to minister Kenney, current CSIS oversight mechanisms were put into place 25 years ago. Those were the days before internet. Surely the oversight should be commensurate with the potency of the surveillance tools now available to CSIS and CSE. This is where C-51 is inadequate. In its third reading, the Conservatives can still make up for that shortfall.