Rules could stymie inquiry of telecoms’ info disclosure to government

Chris Parsons suspects he won’t get the answers he’s looking for. At the very least he’s hoping the public will soon know why. Parsons, a post-doctorate fellow researching telecommunications surveillance practices at the University of Toronto’s Citizen Lab, is among a group of 12 academics that sent letters to some of Canada’s largest telecommunications providers last month to request information about when and how they monitor their customers’ communications, and when they share that info with government agencies. Among other things, the group has asked the providers how many times a government agency requested customer information in 2012 and 2013, the reason or reasons for those requests, whether they’ve received requests they considered “inappropriate” and how the company dealt with it, and whether they have knowledge of government agencies using their own tracking or interception technology for surveillance on their customers. In an interview last week, Parsons said he expects that the providers will be unable to answer some of the questions in the letter due to government rules that prohibit them from sharing information about their lawful-interception practices. In particular, he pointed to Standard 17 in Public Safety Canada’s “Solicitor General’s Enforcement Standards” for lawful-intercept practices, which requires companies that operate mobile services to “protect information on which and how many interceptions” they perform, and which prohibits them from disclosing information about how those intercepts are completed. “It doesn’t seem that a could protest it,” Parsons said of the prohibition in a telephone interview last week. "That speaks to an incredibly powerful gag.” The privacy of citizens’ online data has become an increasingly important topic since last year, when Edward Snowden, a former employee at the U.S. National Security Agency (NSA), leaked evidence that the NSA was collecting and analyzing Internet communications as part of its post-9/11 surveillance programs. In Canada, the debate over telecommunications providers’ role in turning over that data to police and other public safety agencies has also been simmering since February 2012, when the federal government introduced “lawful-access” legislation that would force ISPs to disclose customer information — such as names, addresses, phone numbers, email addresses, Internet protocol addresses and device identification numbers — as requested by authorities without warrants. That bill, C-30, followed a trio of lawful-access bills the government proposed in the previous parliament that contained similar provisions, though it quickly gained notoriety after then-public safety minister Vic Toews declared that opponents of the bill were siding with child pornographers. None of the bills were passed. Telecom insiders contacted by The Wire Report over the past two weeks said the solicitor general rules could prevent them from answering many of the questions in the academics’ letter. One source said it is a “fact of life” that they can’t disclose information about the number or type of interceptions they complete on behalf of government agencies. “I’m completely resigned,” the source said. Tamir Israel, a staff lawyer with public interest group the Canadian Internet Policy and Public Interest Clinic (CIPPIC), said in an interview that the academics’ letter will contribute to the public’s understanding of the lawful-access regime even if the telecom providers can’t answer many of their questions. He said the general public is not widely aware of the government’s prohibition on providers disclosing intercept information, including those whose communications data has been passed along to government agencies in the past. “If they even break down in response to that letter and say, ‘We’re not allowed to respond to this class of information requests,’ then even that would be helpful in terms of transparency about what’s going on in Canada,” Israel said. The solicitor general guidelines that regulate wireless provides’ lawful-intercept practices date back to 1995, when the public Internet was still in its infancy and when mobile phones were much less prevalent. At that point in time, Israel said, restrictions on what the telecom providers could disclose about their interceptions “wouldn’t have been all that big of a deal,” because those intercepts couldn’t collect the same breadth of information about customers’ activities and communications practices as they can today. These days, opponents of Canada’s current lawful-access regime say telecommunications providers have access to in-depth metadata that can determine what type of websites a customer views and even the physical locations in which they have used their mobile devices. Kurt Jensen, a former intelligence official in Canada’s diplomatic service who now teaches courses on intelligence as an adjunct professor at Carleton University, said in a January presentation to the Canadian International Council that many of Canada’s intelligence activities lack “adequate accountability.” He noted that Canada is “one of the few parliamentary democracies” in which parliament does not play any role in overseeing intelligence agencies actions and practices, while organizations that are designed to oversee Canadian intelligence activities — such as the Security Intelligence Review Committee (SIRC) or the Communications Security Establishment of Canada (CSEC) — lack the resources to do the job thoroughly. “Greater transparency of the intelligence organizations is imperative,” Jensen said in the presentation, according to a transcript obtained by The Wire Report. “A lot can and should be done to make intelligence organizations more transparent without compromising security.” Parsons said he can appreciate the need to prevent telecom providers from disclosing information that could affect ongoing police or intelligence investigations. What he doesn’t like is the fact that telecom providers are restricted from ever revealing information about past intercept practices, or about the number of intercept practices they perform each year at public safety agencies’ requests. “I understand why it’s there,” Parsons said of the general prohibition. “But the fact that this is a permanent gag is concerning.” Israel said he would prefer to see any gag order imposed on a case-by-case basis as opposed to a “blanket prohibition” on telecom providers disclosing information. He also said he believes Canada’s security and intelligence agencies lack effective oversight, noting that a lack of accountability and transparency can lead public safety agencies to “overreach” and try to obtain citizens’ data unnecessarily. “They don’t have any reporting obligations on them so nobody really knows that they’re doing,” he said of police and intelligence agencies’ lawful-access requests. In a report to Parliament last month, the federal privacy commissioner recommended that CSEC produce an annual public report to disclose statistics about federal agencies’ interception requests. In an email comment last month, privacy commissioner spokeswoman Valerie Lawton said the little-known solicitor general’s standards should also be the subject of greater transparency. "We believe the standards — and, more generally, law enforcement access to communications and related date — should be subject to greater transparency,” she said. “The standards should be available for public discussion by parliamentarians, academics and security researchers." In a separate email comment last week, Public Safety Canada spokeswoman Josée Picard said the government is “committed” to ensuring there’s an “appropriate balance” between protecting Canadians’ privacy and empowering law enforcement and national security agencies. The solicitor general’s standards “plays a key role in Canada’s security by requiring telecommunications service providers to have the technical capacity for authorities to effect interceptions, when they have lawful authority to do so,” she added. “The standards outline to service providers the technical and operational requirements needed to conduct lawful interception, including the technical details and security precautions that help TSPs comply with Canadian laws and policies,” Picard said. “Discussing these standards publicly could negatively impact the investigative practices of law enforcement and national security agencies. As such, we cannot comment further.” As for Parsons, he said Monday that he was hopeful that telecom providers would still produce useful information about their intercept practices in time for the academics’ March 3 deadline. He noted that none of the telecom providers have responded to the groups’ request so far. “I think there’s still quite a bit of time and so I remain optimistic that we’ll hear something back,” Parsons said. — With reporting by Nicholas Kyonka at nkyonka@thewirereport.ca and editing by Derek Abma at dabma@thewirereport.ca

Rules could stymie inquiry of telecoms’ info disclosure to government

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