In Jewel, the Obama administration has already twice invoked the “state secrets” privilege, a mechanism left behind from the McCarthy-era persecution of Communist sympathizers which effectively lets the government ‘turn off’ the Constitution and the justice system whenever they feel that a case might jeopardize national security. The administration has promised to limit its use of the privilege to situations which present the potential for “significant harm” to the country. But that promise obviously hasn’t stopped them from deflecting recent challenges to warrantless wiretapping and other government counterterrorism initiatives — like indefinite detention provisions, or the secret program for targeted killings carried out by drones — nor will it necessarily restrain future administrations from doing the same.
Jewel may be the last chance for meaningful judicial review of the wiretapping programs in the foreseeable future. Failing that, the only remaining response for journalists and others dealing in sensitive overseas communications may be exactly what digital activists have been advocating for decades: widespread personal encryption. But aside from being somewhat impractical, the necessity of encrypted communications would more broadly underscore just how thoroughly the legal system has failed to protect citizens from unnecessary intrusion.
So, the takeaway from this post is that Industry Canada’s proposed modifications significantly expand the volume and types of communications that ISPs must be able to intercept and preserve. Further, the Department is considering expanding interception requirements across all wireless spectrum holders; it needn’t just affect the LTE spectrum. We also know that Public Safety is modifying how ISPs have to preserve information related to geolocational, communications content, or transmission data. Together, these Departments’ actions are expanding government surveillance capacities in the absence of the lawful access legislation.
Industry Canada’s and Public Safety’s changes to how communications are intercepted should be put on hold until the government can convince Canadians about the need for these powers, and pass legislation authorizing the expansion of government surveillance. Decisions that are made surrounding interception capabilities are not easily reversed because once the technology is in place it is challenging to remove; as such, the government’s proposed modifications to intercept capabilities should be democratically legitimated before they are instantiated in practice.
The same vulnerabilities that enable crime in the first place also give law enforcement a way to wiretap — when they have a narrowly targeted warrant and can’t get what they’re after some other way. The very reasons why we have Patch Tuesday followed by Exploit Wednesday, why opening e-mail attachments feels like Russian roulette, and why anti-virus software and firewalls aren’t enough to keep us safe online provide the very backdoors the FBI wants.
Matt Blaze and Susan Landau, “The FBI Needs Hackers, Not Backdoors”