News from ICLMG

C-20, C-27, C-63 — oh my! Please help us expand our fight for civil liberties!

Over the last few months, there has been an alarming increase in new bills and consultations that threaten to expand anti-terrorism and national security powers, and place civil liberties at even greater risk – on top of everything we were already working on – and we need your help to take it on and win!

Say no more, I’ll support the ICLMG!

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As you may know, ICLMG has just two part-time staff. To be able to tackle these growing threats and to ensure there are strong voices defending civil liberties at the table, we need a boost in resources.

In the last few months:

  • We submitted two briefs – one to Public Safety and one to Justice Canada – for their consultation on potential legislative changes to address foreign interference. The consultation document proposed several concerning changes that would expand CSIS powers to collect data and share information, and normalize the use of secret evidence in courts. A lot remains to be done to follow-up and ensure these don’t become law.
  • We participated in the Office of the Privacy Commissioner’s consultation on their guidance for biometrics, as well as worked with partners to strengthen Bill C-27 to rein in dangerous AI systems, such as facial recognition. Our work on those urgent issues will continue for the foreseeable future.
  • Bill C-20, which aims to create a long overdue independent review body for the CBSA, is going to the Senate soon. We won some important changes in the House of Commons, but we need to keep the pressure on to secure crucial amendments.
  • The government just introduced new online harms legislation, Bill C-63, and there’s much work to do to analyze it and respond.

This is all in addition to everything else we are already working on or is coming up:

  • Participation in the upcoming scheduled reviews of C-59 (the National Security Act, 2017) and C-41, the law that created an invasive authorization regime for organizations to conduct human rights and development activities in areas controlled by groups on Canada’s terrorist entities list.
  • Follow up on the negative impact of efforts to counter terrorist financing and the review of systemic Islamophobia in the Canada Revenue Agency‘s activities.
  • Meetings with MPs, committee members and government officials to discuss pressing issues and possible solutions.
  • The 20th anniversary publication on ICLMG’s work with our partners.
  • Publishing the News Digest every two weeks.
  • And so much more!

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Thank you so much for your support!

Xan & Tim

ICLMG’s Submissions to the Foreign Interference Consultation

On February 9, 2024, ICLMG sent our submissions for the consultation on potential legislative changes to address foreign interference in Canada.

The first submission was sent to Public Safety Canada for their consultation, “Enhancing measures to counter foreign interference: Whether to amend the Canadian Security Intelligence Service Act.”

The second submission was sent to Justice Canada’s consultation, “Addressing Foreign Interference: Whether to Amend the Security of Information Act and Modernize certain Criminal Code offences, and to Introduce a review mechanism in the Canada Evidence Act to manage sensitive information.”

While our focus area is on counterterrorism and not specifically countering foreign interference, there are also many similarities, particularly in the kinds of legislative changes being considered and the national security-related tools being proposed. Moreover, most of what is being proposed would not be limited to countering foreign interference but have wide-ranging impacts on CSIS’ capabilities across its mandate, and across various acts and aspects of the justice system.

SUMMARIES OF OUR SUBMISSIONS

General concerns

  • The framing of “foreign interference” itself, the lack of information around the breadth and impact of it, and the overall solutions proposed are focused on greater securitization, greater police and intelligence agency powers.
  • The politicization and vagueness of terms like “foreign interference” and how they can be usurped to achieve and support goals unrelated to ensuring security of individuals in Canada.
  • Much like with counter terrorism, attempts to counter foreign interference – as demonstrated in recent public discourse – can lead to racial, religious and political profiling.
  • Most of the proposals for legislative changes in this consultation are not supported by evidence that they are necessary, and would have impact far beyond addressing foreign interference.

Submission to Public Safety Canada on “Enhancing measures to counter foreign interference: Whether to amend the Canadian Security Intelligence Service Act”

1. The government should explore avenues to improve information sharing that do not include legislative changes to the CSIS Act

– CSIS already shares threat assessment related information with the private sector, and national security agencies have held regular classified briefings with national resource companies.

– There are ongoing concerns regarding systemic bias and racism: anonymous leaks of unsubstantiated information alleging foreign interference by specific individuals or entire communities, some of which have been disproven or are unsupported by public evidence.

– There are important issues of accuracy, transparency, privacy and recourse regarding intelligence sharing that are not addressed in the consultation and may outweigh any benefits of increased information sharing.

2. We oppose new production order powers and new collection powers

– CSIS data collection and retention powers have been greatly expanded in the past five years and not enough justification has been given in this consultation document to support further expansion.

– The vague language used to describe the basis and thresholds for issuing a production order – “reasonably believes,” “likely” to yield or assist, and information “of importance” – could lead to unnecessary and broad requests for information without appropriate justification.

– CSIS has a troubling history of disdain for the existing warrant process, and courts have found CSIS guilty multiple times of misleading them or leaving out key information.

3. We oppose granting CSIS the power to collect foreign intelligence held outside Canada regarding a foreign state or a foreign individual located within Canada

– The intent of the limitation of “within Canada” was to avoid: “aggressive ‘covert’ and ‘offensive’ activities abroad,” so as “to mitigate the political diplomatic and moral risk of conducting foreign intelligence collection, which [has] the potential to breach foreign international law [and] foreign domestic law and bring disrepute to Canada’s international reputation […].” The proposal does not address how this would be safeguarded against with any new CSIS collection powers. We would also be concerned that this would provide CSIS with vast new powers to collect information abroad without appropriate oversight or justification.

4. It is inappropriate, inadequate and worrisome to address the question of CSIS’ dataset regime in this consultation, and we oppose expanding the regime and allowing the sharing of datasets with domestic partners or foreign entities

– Not only do we continue to question the creation of this regime itself, and believe the current legislation around datasets is too broad and permissive – as it expanded CSIS collection powers to information that is not strictly necessary for its mandate – it already allows for non-authorized datasets to be queried under exigent circumstances.

– Ample powers already exist for CSIS to cooperate with the RCMP, CSE and CBSA, and information disclosure powers exist under the Security of Canada Information Disclosure Act.

– Once a dataset is shared with another entity, it becomes incredibly difficult to control how it is used; and that is exponentially amplified when sharing with a foreign jurisdiction.


Submission to Justice Canada on “Whether to Amend the Security of Information Act and Modernize certain Criminal Code offences, and to Introduce a review mechanism in the Canada Evidence Act to manage sensitive information”

1. We generally oppose the creation of the proposed new foreign interference offences

– The concerning tenor of the discussion on foreign interference in Canada to date could lead, as it does around counter-terrorism, to overreach and over-securitization in addressing this issue. Such a response would undermine fundamental rights and, with it, democratic involvement and participation. This in turn can lead to more tension and divisions, and the further marginalization of racialized, Indigenous or immigrant populations, as well as those involved in dissent, protest and challenging the status quo.

– It is also important to ensure that responses beyond policing, intelligence, criminal charges and penalty increases at sentencing are appropriately explored, such as non-punitive approaches that respond to the societal roots of harms.

– Given our concerns around the overly-broad and discretionary labeling of organizations as “terrorist entities”, we are worried that the current definition of foreign entity could be misapplied. The definition should therefore not be expanded.

3. We believe any changes to Canada’s sabotage offence should be limited

– We oppose the broad expansion of what is considered critical infrastructure, and are concerned with the inclusion of the protection of “economic well-being” in the examples offered. This could include private interests that, for example, are at odds with environmental or social concerns.

– We oppose the creation of an offence against the possession of a device to commit sabotage. The vast majority of devices covered would likely end up being dual or multi-use. The Criminal Code already contains offences related to the intent to commit an offence, that is sufficient.

4. We continue to oppose secret processes in administrative, immigration and criminal proceedings, as well as new efforts to normalize and expand their use

– The growing use of these secret processes is eroding, and will continue to erode, human rights, democracy, fairness and public confidence in not just the government, but in the judiciary itself.

5. We are opposed to reforms that would further entrench national security secrecy in courts and limit the need for the government to disclose evidence

– Instead of allowing judges to appoint a kind of “special advocate,” justice would be better served by allowing counsel for the defence to engage in an undertaking to not disclose information, and therefore be able to fully argue on behalf of their client.

– We oppose the elimination of a defendant’s ability to file interlocutory appeals relating to disclosure, as the rights of the accused would be irreparably harmed by limiting appeals to after a decision is rendered.

– Finally, we oppose the expansion of the grounds to grant a sealing order to include, “international relations, national defence or national security,” as all three terms are very broad in scope and could seriously erode transparency and openness in the judicial system.

Since you’re here…

… we have a small favour to ask. Here at ICLMG, we are working very hard to protect and promote human rights and civil liberties in the context of the so-called “war on terror” in Canada. We do not receive any financial support from any federal, provincial or municipal governments or political parties. You can become our patron on Patreon and get rewards in exchange for your support. You can give as little as $1/month (that’s only $12/year!) and you can unsubscribe at any time. Any donations will go a long way to support our work.panel-54141172-image-6fa93d06d6081076-320-320You can also make a one-time donation or donate monthly via Paypal by clicking on the button below. On the fence about giving? Check out our Achievements and Gains since we were created in 2002. Thank you for your generosity!
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ICLMG’s submission to the Privacy Commissioner’s consultation on biometrics guidance

On October 11, 2023, the Office of the Privacy Commissioner of Canada (OPC) launched a public consultation on new draft guidance on biometric technologies.

The draft guidance provides information on privacy obligations, considerations, and best practices for handling biometric information. It is divided into two documents: Draft Guidance for processing biometrics – for organizations and Draft Guidance for processing biometrics – for public institutions.

ICLMG analyzed and commented on the draft guidance for public institutions both during a virtual call with OPC staff, and online. Here are our answers to the consultation questions relevant to our mandate:

1. Identifying appropriate purposes:

Are there specific uses of biometrics that should be considered inappropriate? Should we define these no-go zones in the guidance?

Yes, we believe that there should be specific no-go zones established in the guidance for both private and public institutions. This includes:

  • The use of biometrics for real-time surveillance in public spaces (for example, at protests, in airports, at the border, at shopping malls, at sports arenas, etc.)
  • Biometrics should never be used for indiscriminate, mass surveillance
  • Biometrics should never be used to attempt to evaluate emotions or feelings
  • Biometrics should never be used to attempt to ascertain gender or sexual orientation
  • Biometrics should never be used to attempt to ascertain or predict the activities of groups of protected classes of people (ie, predictive policing of specific communities)

Greater consideration should also specifically be given to the collection and use of biometrics in immigration and asylum cases, given the sensitivity in these cases. While we do not have specific suggestions for no-go zones at this time, renewed focus on what is appropriate or inappropriate in this sector is necessary.

[…]

4. Accountability:

Are there requirements in the guidance that should be specifically directed towards vendors/manufacturers of biometric equipment, and the organizations that choose to use such equipment for the collection of biometric data?

For both private and public institutions, we would suggest guidance that they be proactive and public about their use of technology, and which technology, they use to collect biometric data; how they select which technology to use; what safeguards are in place; and how to request information about the use of their biometric information and what recourse individuals have. This would go beyond their being prepared to respond to questions upon request and rather ensure information is as accessible as possible.

We are also strongly supportive of the guidance under the “Accountability” section for public institutions explaining that they “must do [their] due diligence to ensure accountability of third party service providers and that they are acting lawfully.”

5. General:

Are there any other outstanding areas of regulatory uncertainty that this guidance can help clarify? If so, what are they and why do you think they should be included?

We are concerned that current privacy and national security laws grant intelligence agencies, and to a lesser degree law enforcement agencies, exceptions to the obligations that other public institutions must follow. This would allow, for example, intelligence agencies to collect and use biometric information in ways that would not be allowed for other institutions; allow them to not disclose their use of biometric data; and deny individuals the ability to know how their information is being used or to request its destruction. We would suggest that a specific mention be made in the guidance that all government agencies, including national security and law enforcement bodies, are expected to adhere to this guidance.

Further, we would suggest a caveat that while this guidance is in relation to the Privacy Act, that it should also be taken into consideration when government departments disclose or collect information under other acts, with the specific example of the Security of Canada Information Disclosure Act (SCIDA). For example, considerations around limiting collection, limiting use, disclosure and retention, safeguards and accuracy should also be considered when considering the disclosure of biometric data under SCIDA.

*****

ICLMG maintains its long-standing opposition to the use of facial recognition technology, especially by law enforcement and intelligence agencies. Please take action below to protect our rights from facial recognition:

TAKE ACTION

We also encourage you to read the submission made by La Ligue des droits et libertés, one of our members (in French only).

Since you’re here…

… we have a small favour to ask. Here at ICLMG, we are working very hard to protect and promote human rights and civil liberties in the context of the so-called “war on terror” in Canada. We do not receive any financial support from any federal, provincial or municipal governments or political parties. You can become our patron on Patreon and get rewards in exchange for your support. You can give as little as $1/month (that’s only $12/year!) and you can unsubscribe at any time. Any donations will go a long way to support our work.panel-54141172-image-6fa93d06d6081076-320-320You can also make a one-time donation or donate monthly via Paypal by clicking on the button below. On the fence about giving? Check out our Achievements and Gains since we were created in 2002. Thank you for your generosity!
make-a-donation-button

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