A 10-year retrospective on the impact of September 11, 2001 on privacy rights
Patrick Smith
On 15 October 2001, just thirty-four days after the September 11, 2001 terrorist attacks in the United States, the Government of Canada introduced Bill C-36 – An Act to amend the Criminal Code, the Official Secrets Act, the Canada Evidence Act, the Proceeds of Crime (Money Laundering) Act and other Acts, and to enact measures respecting the registration of charities, in order to combat terrorism or (The Anti-Terrorism Act).
There were four central objectives of Bill C-36:
• stop terrorists from getting into Canada and protect Canadians from terrorist acts;
• bring forward tools to identify, prosecute, convict and punish terrorists;
• prevent the Canada-US border from being held hostage by terrorists and impacting on the Canadian economy; and
• work with the international community to bring terrorists to justice and address the root causes of such hatred.1
Safety and security, rather than the more careful concerns of a balance between security and rights evident when Canada’s Security Intelligence Service was created in the early 1980s, was the order of the day. As noted by Ministers responsible, the bill was intended to “give law enforcement and national security agencies new investigative tools to gather knowledge about and prosecute terrorists and terrorist groups, as well as protect Canadians from terrorist attacks”, including:
• making it easier to use electronic surveillance against terrorist groups;
• creating new offences targeting unlawful disclosure of certain information of national interest;
• amending the Canada Evidence Act to guard certain information of national interest from disclosure during courtroom or other judicial proceedings;
• amending the National Defence Act to continue and clarify the mandate of the Communications Security Establishment (CSE) to collect foreign communications;
• within carefully defined limits, allowing the arrest, detention and imposition of conditions of release of suspected terrorists to prevent terrorist acts and save lives;
• requiring individuals who have information related to a terrorist group or offence to appear before a judge to provide that information; and
• extending the DNA warrant scheme and data bank to include terrorist crimes.2
Despite assurances from the Minister of Justice – that “the measures we are introducing strike the right balance between civil liberties and national security, and signal our resolve to ensure Canadians will not be paralyzed by acts of terrorism” – Canada’s new Anti-Terrorism Act clearly tipped the delicate balance between rights and security toward security. Despite the undertaking that “the proposed Anti-terrorism Act includes rigorous checks and balances in order to uphold the rights and freedoms of Canadians”, the only recognition on the rights side were to amend the Criminal Code to add ‘on-line hate’ and ‘mischief against places of religious worship/religious property’ and to amend the Canadian Human Rights Act to prohibit ‘spreading repeated hate messages’ by any method of communication. To counter anticipated criticisms “the scope of the Criminal Code provisions [were] clearly defined to ensure they only apply to terrorists and terrorist groups”.3 A ‘three year Parliamentary review’ of the legislation was also added.4
Even before the introduction of Bill C-36 – and related legislative efforts C-35 and C-42 – civil libertarians anticipated a “trampling of civil rights” in the post-September 11th ‘war on terrorism’. For example, British Columbia Civil Liberties Association President John Dixon reminded Canadians of the McCarthy-era attack on “civil rights – presumptions of innocence, privacy, and freedoms of conscience, association and speech”. For Dixon, there was the likelihood that intelligence gathering through the over-riding of privacy rights would alter “the balance to be struck between principle and need … That depends both upon the importance of the principle and the likelihood that some sacrifice of it will yield significant results.” His conclusion: “trampling on civil rights will not lead to a genuine victory against terrorism”. 5 Editorial writers came to the same conclusion: the Vancouver Sun ’s David Beers bemoaned attacks on free speech following September 11th, arguing that the “you’re either with us or you’re against us” strategy made one wonder “whether any of it served to bring us closer to defeating the enemy out there, or whether it really was about manufacturing an enemy within”.6 It was a caution posed by Osama Bin Laden himself, just weeks after the September 11, 2001 attacks: In a televised statement in October 2001. Bin Laden stated the most likely outcome from September 11th: “Freedom and human rights in America are doomed. The US government will lead the American people – and the West in general – into an unbearable hell and a choking life”.7
The concerns around human rights continued following introduction of Bill C-36 in Canada: within days, there were widespread calls for amendments to the speedily drafted legislation. One of the biggest issues was the definition of terrorism which seemed to include both illegal strikes and civil disobedience, (“an act or omission … intended to endanger a person’s life … [and] to cause serious interference with or serious disruption of an essential service” and an unlawful act committed for “ideological purpose” that causes “serious disruption of an essential service, facility or system”).8 This was far more than the US definition of terrorism: “premeditated, politically motivated violence perpetrated against non-combatant targets by sub-national groups or clandestine agents”.
Beyond this, critics objected to other powers and controls: these included: (1) the power of detention (to allow holding a suspect without charge, with judicial approval, for 72 hours); (2) the power to detain, without charge, with judicial approval (for up to one year, if the person does not agree to reasonable restrictions on their behaviour as a condition of release); (3) the possibility of up to ten years imprisonment for “legally” ‘participating or contributing’ to activities of a known terrorist group; and (4) the requirement to testify at ‘investigative hearings’. Essentially allowing the Solicitor-General the power to create a “List of Terrorists” on “reasonable grounds” only – and then not require the government to even notify individuals or groups that they are on the list.
As one editorial noted:
Balancing freedom and security is always complex … We’ve seen legitimate dissent suppressed in the name of public safety … Some revision [to C-36] is needed before the law is passed. It’s a free and democratic society we seek to protect and those values aren’t adequately served by this draft of the law.9
After much pressure, the government agreed to consider amendments in early November 2001. The discourse during this period was in both directions – on human rights and security – though mostly the calls were for major changes to favour the security side of the equation: the Canadian Police Association called for even greater investigative tools to wiretap, guard the borders and catch people with fake ID, and rejected a call for a five-year sunset clause, claiming that sensitive work on ongoing terrorist investigations could be “put on hold in the months leading up to a vote on the sunset clause”; civil rights groups countered that the bill gave far to much power to authorities and threatened basic rights and freedoms.10
A positive governmental response on some of the rights concerns was largely predicated on the recommendation of Canada’s Senate that a five-year sunset clause be included. In a unanimous bi-partisan Senate committee report, the senators noted that “Bill C-36 gives powers that, if abused by the executive or security establishments of this country, could have severe implications for democracy in Canada.” As a result, the Senate committee recommended that “new police powers of detention, investigation and surveillance be rescinded in five years unless specifically extended by Parliament”.11 This view was supported by civil libertarians and groups like the Canadian Bar Association.12
Confronting dissent from the Senate and even within his own Cabinet, as well as a “national backlash”, Prime Minister Jean Chrétien indicated he was ‘flexible’ in terms of considering several amendments to the “hastily-conceived and ill-defined act”, C-36.13 One British Columbia lawyer, constitutional law expert James Aldridge, in appearing before the House Justice Committee, argued that people and groups could have all their assets stripped away “without there even having been a charge, a trial or a finding of guilt”. For Aldridge, Bill C-36 was simply “a law that strips away basic legal protections” because of fear, and “as surely as night followed day, will be misused”.14 Amnesty International Canada felt that while it “recognizes the right, indeed the obligation, of governments to provide to their citizens meaningful protection in the face of potential human rights abuses, including attacks of the nature of those that took place on September 11th”. However,
peaceful forms of dissent, widely recognized as legitimate and supported and defended by groups such as Amnesty International, could conceivably fall under the unacceptably broad definition of “terrorism” found in Bill C-36. The proposed legislation applies not only to acts motivated by political belief, ideology or religion that cause or lead to deaths or serious threats to public safety – human rights abuses that clearly must be addressed with utmost seriousness – but also to acts motivated by political belief, ideology or religion that disrupt an essential service, facility or system whether or not this disruption is intended or is likely to endanger lives and public safety.15
For Amnesty International Canada, “the only protection that the Bill provides for peaceful protest is that it excludes ‘lawful’ acts of dissent that don’t endanger lives or cause a serious risk to public health or safety”. Yet, “even ‘unlawful’ forms of dissent should not be characterized as ‘terrorism’ unless they endanger lives or public safety. Alex Neve, Secretary General of the English-speaking branch of Amnesty International Canada noted that the line between ‘lawful’ and ‘unlawful’ is too fine and often too arbitrary to say that one is acceptable, perhaps even commendable, and the other is ‘terrorism’:
Protesters often stray beyond the bounds of what is strictly lawful through acts of trespass or civil disobedience. Should Canada respond to such acts as “terrorism”? Absolutely not … By asserting that acts of political protest can be considered “terrorist” acts, even when lives and public safety are not endangered, the Canadian government plays into the hands of governments that ruthlessly suppress human rights … Not only does Bill C-36 have the potential to stigmatize legitimate human rights defenders in other countries, it could create a chill on Canadian organizations trying to assist these defenders when they most need our help.16
In their brief to the Commons Committee, Amnesty International Canada presented five case histories of human rights defenders abroad who could conceivably be considered terrorists under Bill C-36 because they led disruptive strikes, anti-logging blockages and civil disobedience campaigns declared to be unlawful by their respective governments. These activists included recipients of international human rights prizes and prisoners of conscience currently being defended by Amnesty International. The group’s recommendation to the government was that “Bill C-36 be amended to cover only acts that result in or are likely to lead to deaths, serious bodily harm or grave threats to public health and safety.” 17
The human rights organization also noted some positive elements in Bill C-36 such as “the commitment to launch judicial proceedings against individuals accused of serious human rights abuses such as attacks on civilians” and “the provisions … which would strengthen Canada’s laws dealing with hate crimes and propaganda”.18
Bill C-36 was amended and passed by the House of Commons on 28 November 2001; Justice Minister Anne McLellan’s Edmonton constituency office was the subject of a protest sit-in during parliamentary consideration of C-36.19 The Anti-Terrorism Act was passed by Senate and received Royal Assent on 18 December 2001. The key amendments introduced on 20 November 2001, included the following ‘responses’ to rights criticisms:
• a sunset clause – in addition to a three-year Parliamentary review, the government agreed to add a sunset provision to both preventive arrest and investigative hearing provisions. These would expire after five years unless renewed by Parliament;
• an Annual Report to Parliament – a new provision which would require the Federal Attorney and Solicitor-General, and their provincial equivalents, to report annually to Parliament on any use of either preventive arrest or investigative hearings;
• a new definition of terrorist activity – ‘to ensure that protest activity, whether lawful or unlawful, would not be considered a terrorist activity unless it was intended to cause death, serious bodily harm, endangerment of life or serious risk to public health or safety’; a separate interpretive clause was added for greater clarity regarding the protection of political, religious or ideological beliefs/expression;
• a review mechanism for A.G. Certificates – rather than being issued ‘at any time’, these could only be issued after an order by the Federal Court in a proceeding; they were to be published in the Canadian Gazette and could last for no more than 15 years. FOI provisions were to be the rule v. the exception;
• a re-definition of facilitation – offences related to facilitating terrorism were to be clarified by an interpretive section on such activity;
• technical amendments – to clarify the intent of the Act and some technical changes.20
Bill C-36 had garnered substantial criticism from trade unions such as the Canadian Labour Congress (CLC) and the Canadian Auto Workers (CAW), civil liberties organizations such as the Canadian Human Rights Commission, Amnesty International and the British Columbia Civil Liberties Association, ethnic organizations such as the Canadian Arab Federation, the National Association of Japanese Canadians and the Canadian Race Relations Foundation, privacy advocates and freedom of information officials from federal and provincial jurisdictions, religious groups such as the Mennonite Central Committee, university associations such as the Canadian Association of University Teachers, peace activists, environmentalists, anti-globalization entities, pro choice advocates and Canadian nationalists.21 All commented on the incorrectness of the Government’s tilt away from a balance between rights protection on the one hand and perceived security needs after September 11th on the other. The only real shift from the early 1980s debate was that the later focus was no longer on necessity. Despite the fact that the 1980s debate about the creation of the Canadian Security Intelligence Service (CSIS) had simply been on the creation of a civilian security and intelligence agency, all other areas of the 1980s policy discourse continued in 2001–2002: (1) on security of the collectivity versus individual rights; (2) mandate and functions for various authorities; (3) powers; (4) structure and location of this emergency authority; and centrally, (5) accountability. All of these concerns from the early 1980s had reappeared. The only difference was that the new anti-terrorism plan’s legislative framework in the twenty-first century was across most departments and a broad cross-section of amended legislation.
Overlapping with the initial Canadian anti-terrorism legislation, C-36, was another important piece of the government’s Anti-Terrorism Plan: Bill C-42 – the Public Security Act. If the Chrétien Government tipped its original C-36 legislative proposals too far in the direction of security over rights, then C-42 represented a complete unbalancing. C-42, the second Anti-Terrorism Bill, was introduced in November 2001 – before final approval of C-36. From the government’s perspective, this second Bill, the Public Security Act, was “an appropriate continuation of the legislative amendments tabled in Bill C-36 and introduces new amendments to the National Defence Act (NDA), etc.” Some of the highlights of the Bill were:
• measures to ensure the Canadian Forces have the authority to protect their computer systems networks and the information they contain from attack or manipulation. The unique role of the Canadian Forces and their ability to operate with their allies requires that they have the authority to protect their networks.
• Modernization of the definition of ‘emergency’ to reflect the new security environment that would include clear reference to circumstances of armed conflict short of formally declared war. A number of important powers under the National Defence Act, such as the authority to generate forces to deal with terrorist threats, are tied to the existence of an emergency.
• The authority to establish temporary “military security zones” to protect Canadian Forces and visiting forces personnel and equipment that are located off Defence establishments. Military security zones may also be established to protect property, places and things that the Canadian Forces have been directed to protect.
• The establishment of a panel of military reserve judges to increase the flexibility of the Military Justice System to respond to increased demands for judicial services flowing from sudden changes in the operational tempo of the CF.
• The Bill includes job protection measures for reservists in the event that they must be called out compulsorily by the government in an emergency such as armed conflict or war. At the conclusion of a period of compulsory call-up, employers would be required to reinstate reservists in equivalent employment. This amendment ensures that reservists do not have to choose between possibly losing their livelihoods and breaking the law that requires them to serve when called. The new legislation will also amend the procedures that are followed when Provinces request military assistance and align it with existing mechanisms that permit the Canadian Forces to provide assistance to civilian law enforcement, which involve Federal Government input. Requests for aid of the civil power will continue to be made directly to the Chief of Defence Staff (CDS). However, the NDA amendments would allow the Minister of National Defence to provide direction to the CDS to ensure that the Government of Canada is able to manage simultaneous or multiple requests for assistance during an emergency.22
According to the Minister of National Defence:
Proper security measures are necessary to safeguard our freedom and democracy. This legislation is an appropriate response to the security threat facing Canada. The Bill introduces legislation that will help the Government of Canada, the Department of National Defence and the Canadian Forces improve their ability to protect Canadians from terrorism and its effect.23
If Bill C-36 garnered criticism for the range of its provisions, C-42 was seen as insupportable on narrower grounds – though one seen as just as fundamental regarding rights v. security. Backbench governmental criticisms, opposition questioning and the same array of rights-centred entities all suggested that one of its central intents was to allow the Minister of National Defence to declare the June 2002, G-8 summit site at Kananaskis, Alberta, ‘a military zone’ to prevent protests. This, despite the fact that C-42 involved amendments to the following Acts:
Aeronautics Act, Canadian Environmental Protection Act, 1999, Criminal Code, Department of Health Act, Explosives Act, Export and Import Permits Act, Food and Drugs Act, Hazardous Products Act, Immigration Act, National Defence Act, National Energy Board Act, Navigable Waters Protection Act, Office of the Superintendent of Financial Institutions Act, Pest Control Products Act, Proceeds of Crime (Money Laundering) Act, Quarantine Act, Radiation Emitting Devices Act, Canada Shipping Acts, Biological and Toxin Weapons Convention and the Proceeds of Crime (Money Financing Act.24
Due to internal dissent and extensive external criticism, Bill C-42, intended to deal with the ‘emergency’ situation perceived after the events of September 2001, was allowed to languish in Parliamentary limbo. On 24 April 2002, it was formally withdrawn. Within a week a replacement bill – Bill C-55 – the Public Safety Act, was put before Parliament by the government. As one media columnist noted: “Bill C-42 replacement is less offensive than the original”, but C-42 was mostly “yanked due to concerns about its capacity to withstand a legal challenge”:
Don’t for a moment believe federal government claims that the decision to dilute blatantly anti-democratic security legislation is the result of a deliberative consultation . … Much to the embarrassment of the ruling Liberals, Bill C-42 was yanked last week and replaced yesterday with a modest sibling for the more pressing reason that it was, and may still prove to be, lousy legislation. In its political wisdom, the government reached the inescapable conclusion that the original bill would fail the first, inevitable, legal challenge. So Liberals today are deep in damage control … Bill C-42 was bad law and the Liberals knew it was bad law. They were told that by a Who’s Who of non-partisan critics whose concerns ranged across the original bill’s four main provisions before settling on egregious, potentially dangerous infringements of personal privacy and plans to give cabinet ministers extraordinary, unnecessary, powers. Some of those concerns were sidelined when the government split and amended legislation primarily dealing with air safety. Still, the queue of critics remained long and impressive … [for] a bill that had already raised the hackles of lawyers, academics and activists. C-42 badly failed critical tests. If that legislation became law, Canadian ministers would have gained powers that would raise eyebrows and howls of protest in places with a more suspect grasp of democratic principles. Grabbing powers that more properly belong to Parliament and the people, the legislation would have given some ministers unprecedented authority to impose interim orders in secret. Loaded with the baggage of martial law and free of the necessary constraints imposed on the similar but more open Emergencies Act, the orders could have only required cabinet approval within 90 days of being imposed. More remarkable than the powers themselves is the singular absence of any justification. No minister or government background papers ever convincingly explained why such obvious infringements of the federal Charter of Rights and Freedoms were necessary or how the legislation would make Canadians safer. Still, the government hoped to slide this law past a public grown unwary in the aftermath of other security legislation hurriedly amended with sunset clauses. That intention is now the most worrisome aspect of this sorry adventure in law making. It is reassuring the original bill is dead. What isn’t comforting is that this government would once have willingly given it life.25
On 29 April 2002, five days after the withdrawal of Bill C-42, the Chrétien Government introduced what they termed “an improved package of public safety initiatives in support of its Anti-Terrorism Plan”. This single integrated Bill (Bill C-55 amended 21 Acts of Canada) kept key elements of the tarnished C-42. For the Minister of Transportation, David Collenette, “this legislation … responds to the need for enhanced security while respecting the rights of Canadians”.26 Not everyone agreed. However, the new C-55 legislation responded to some of the concerns raised with respect to Bill C-42, by, for example:
• further defining and circumscribing the power of the Minister of National Defence to establish Controlled Access Military Zones, and of other ministers to use interim orders in emergency situations;
• providing comprehensive parameters for the new terrorist hoax offences; and,
• providing strong measures to ensure accountability and transparency.
The Public Safety Act of 2002 still contains key measures that will increase the Government of Canada’s capacity to prevent terrorist attacks, protect Canadians, and respond swiftly should a significant threat arise. Notably, it will:
• clarify and update existing aviation security authorities to maximize the effectiveness of Canada’s aviation security system and enhance the ability of the Government of Canada to provide a safe and secure environment for air travel;
• facilitate the sharing of law enforcement and national security information between federal departments and agencies;
• deter hoaxes that endanger the public or heighten public anxiety;
• establish tighter controls over explosives and hazardous substances, activities related to other dangerous substances such as pathogens, and the export and transfer of technology;
• help identify and prevent harmful unauthorized use or interference with Department of National Defence computer systems;
• deter the proliferation of biological weapons; and,
• respect the privacy rights of Canadians.
In addition, the legislation includes new provisions to do the following:
• improve the capacity of federal departments and agencies involved in anti-terrorism and national security activities to share critical information and coordinate their work;
• provide for the smooth flow of information between Canada and its partners internationally, particularly the United States, in order to prevent terrorist activity and protect public safety; and,
• provide a mechanism by which the Government of Canada can provide financial assistance, where necessary, to enhance marine security.
It continued to garner mostly negative response. The Public Safety Act, C-55, was seen by the Government as the next step in its broad-based anti-terrorism plan, which began with the Anti-terrorism Act (Bill C-36) and was bolstered by a $7.7 billion investment in Budget 2001.27 “Where the Anti-terrorism Act focused mainly on the criminal law aspects of combating terrorism, C-55 addressed gaps in the federal legislative framework for public safety and protection.” 28
One of the measures that continued to cause concern was the powers given to the new Canadian Air Transport Security Authority, funded with $2.2 billion for air security in the December 2001 federal Budget, and responsible for aviation security services in Canada, including:
• pre-board screening of passengers and their belongings;
• certification of screening officers;
• purchase, deployment, maintenance and operation of explosives detection systems;
• federal contributions toward airport policing related to civil aviation security; and
• contracting with the RCMP for armed officers on board aircraft.29
Under C-55 changes to the Aeronautics Act, passenger data that may be required in the interest of transportation security are:
The amendments would enable the Government of Canada to require air carriers and operators of aviation reservation systems (systems that provide the capability to make air reservations or issue tickets for air services) to provide information on passengers while balancing the privacy rights of passengers. Specifically, the new provisions would require that an air carrier must, upon request, provide a designated RCMP or CSIS officer with passenger information for the Air Carrier Protective Program (RCMP officers on board aircraft), for reasons related to: immediate threats to life, health, safety or transportation security; execution of warrants for serious offences, such as murder or kidnapping, as well as warrants under the Immigration Act; compliance with subpoenas or court orders; and counter-terrorism investigations by CSIS. The proposed scheme would include strict controls on access, use, and disclosure, and strong privacy safeguards.
Another section of the Aeronautics Act is being amended to clarify that air carriers may only provide information to a foreign country on passengers on board an aircraft departing from Canada, or on a Canadian airlines’ aircraft departing from somewhere else, if that flight is scheduled to land in that country.30
Canada’s Privacy Commissioner, among others, considered this an unnecessary intrusion on the privacy rights of Canadians. George Radwanski expressed ‘serious concerns’ about C-55, noting it “raised very, very serious privacy issues”.31 He was supported by Privacy Commissioners in several provinces. These concerns were expressed even within the Liberal caucus – Montreal MP Irwin Cotler criticized C-55; 32 and Amnesty International also raised concerns about the capacity of Ministers to designate ‘controlled military zones’ in ways which would not infringe on free speech and assembly rights. Here the June, 2002 Kananaskis, Alberta, G-8 Summit was front and centre.33
These concerns were reflected in editorials and columns across the country: The Ottawa Citizen, for example, asked:
Why should police be allowed to see the private data Canadians give airlines? It’s not enough to cite, as Solicitor General Lawrence McCauley did last week, the “changed security environment” … It [the government] should amend the bill [C-55] to remove this unwarranted intrusion into our privacy.34
Federal Privacy Commissioner George Radwanski called C-55 provisions, simply, “a power grab by the police”.35
With the September 2002 Throne Speech and a new session of Parliament, C-55 died on the old Order Paper. Its successor – C-17, the Public Safety Act – seems to have learned few lessons from the protests over its intrusiveness and impingement on rights of Canadians. The government sought to continue surfing airline manifests for information on travelers. Some small concessions appear likely here but the thrust of the most recent Canadian responses to post September 11 appears significantly dictated by our closest North American neighbour.36
Even here that does not appear enough. American responses such as racial profiling led to an October 2002 Canadian Government travel advisory to Canadians of Arab origin.37 Even when Canadian pressure and possible constitutional challenges produced an alteration to this US policy, photographing and fingerprinting will only ‘no longer be automatic by place of birth’ – but will continue as deemed useful by INS officials.38
The vernacular of the policy discourse of 2001/2002 around anti-terrorism (C-36) and public safety (C-42 and C-55 -and its autumn 2002 C-17 successor) turns out not to be dramatically different than that posed in the early 1980s debates over (C-157 and C-9) the creation of CSIS.
The governmental side in both eras tended to exaggerate threats and overemphasize security needs. In both cases, the critics were able to force withdrawal of legislation (C-157 and C-42 or to wring small concessions from the new Public Safety Act) – but, that success aside, to lose ground on the rights vs. security balance. More importantly, the content of the criticisms were remarkably similar and forced each government of the day to recognize a need to move toward a closer balance between security needs and rights protections.
The fact that C-55 was not passed/proclaimed before the summer 2002 recess of the Canadian Parliament 39 – and died on the order paper until reintroduced as C-17 in late October 2002 after a new Throne Speech – does not diminish the fact that the more recent legislation continue to generate vigorous opposition based on the same rights-concerns as in the early 1980s. The main difference between the policy discourse of the two eras may be that the Canadian Government of today is able to generate more concerns on the security side of the equation to bolster their fundamental re-balancing of security over rights.40 In response to the new Public Safety legislation, Canada’s Privacy Commissioner George Radwanski suggested it “effectively expanded police powers in the guise of fighting terrorism; and ‘raises the spectre’ of a ‘police state’ ”.41 As the Privacy Commissioner has stated:
In Canada, it is well established that we are not required to identify ourselves to police unless we are being arrested or we are carrying out a licensed activity such as driving. The right to anonymity with regard to the state is a crucial privacy right. Since we are required to identify ourselves to airlines as a condition of air travel and since section 4.82 would give the RCMP unrestricted access to the passenger information obtained by airlines, this would set the extraordinarily privacy-invasive precedent of effectively requiring compulsory self-identification to the police.
I am prepared, with some reluctance, to accept this as an exceptional measure that can be justified, in the wake of September 11, for the limited and specific purposes of aviation security and national security against terrorism. But I can find no reason why the use of this de facto self-identification to the police should be extended to searching for individuals who are of interest to the state because they are the subject of warrants for Criminal Code offences unrelated to terrorism. That has the same effect as requiring us to notify the police every time we travel, so that they can check whether we are wanted for something.
If the police were able to carry out their regular Criminal Code law enforcement duties without this new power before September 11, they should likewise be able to do so now. The events of September 11 were a great tragedy and a great crime; they should not be manipulated into becoming an opportunity – an opportunity to expand privacy-invasive police powers for purposes that have nothing to do with anti-terrorism …
The place to draw the line in protecting the fundamental human right of privacy is at the very outset, at the first unjustifiable intrusion. In this instance, that means amending the bill to remove all reference to warrants and thus limit the police to matching passenger information against anti-terrorism and national security databases.
The concerns that I have raised in this matter since last spring have been publicly endorsed by the Information and Privacy Commissioner of British Columbia and the Information and Privacy Commissioner of Ontario; by members of every party in the House of Commons, notably including a member of the government’s own Liberal caucus who is an internationally recognized expert on human rights, Irwin Cotler; and by editorials in newspapers including the Toronto Star, the Globe and Mail, the Vancouver Sun, the Vancouver Province, the Calgary Herald and the Edmonton Journal.
These concerns have now been ignored by the Government.
The changes that have been made in this provision in the new bill do nothing to address the fundamental issues of principle that are at stake.
The Government now proposes to have regulations limiting the Criminal Code offence warrants for which the RCMP will be searching. But this does nothing to address the fundamental point of principle that the police have no business using this extraordinary access to personal information to search for people wanted on warrants for any offences unrelated to terrorism.42
The concerns of Canada’s former Privacy Commissioner about C-17, Canada’s Public Safety Act – supported by most provincial privacy commissioners, civil liberties associations, the Canadian Bar Association and many national media editorials – is the same today: “we must guard against falling prey to the illusion that wholesale erosion of privacy is a reasonable, necessary or effective way to enhance security”.43 On the matter of a possible national identity card as one way to ensure greater security:
The creation of a national identity card is … an idea totally without merit. [It] would radically change Canadian society by drastically infringing on the right to anonymity that is part of our fundamental right of privacy. [It] is unthinkably invasive.
C-17 and ideas like a national identity card that remain pending in Canada show the trend line is clear: in Canada – as in the United States with the Patriot and Homeland Security Acts, and in many other western democracies – September 11, 2001 did alter the ‘delicate balance’ between security and rights; a real re-balancing may be some time in coming.
The American experience on finding the delicate balance between human rights and security needs is not a lot different than that in Canada. The significance of constitutionally protected rights is an important feature in America.
But despite the significance of a rights culture in the United States, examples of rights-security/public order imbalance exist. Notwithstanding a strong Bill of Rights from its beginning, it took the 13th through 15th Amendments around the Civil War, and a Warren Court almost a century later for some achievement of rights such as real ‘equal protection’.
The excesses of the McCarthy-era House Un-American Activities Committee continue to animate Americans. It took some time for Americans to find a re-balance of their rights over perceived security-dominated needs in the country during the early Cold War. But some balance was achieved.
On 24 October 2001, just five weeks after the September 11th terrorist attacks on the US, Congress passed the ‘Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism – USA PATRIOT ACT of 2001’. The Patriot Act involved changes to 15 different legislative acts; the changes varied from minor to more broad. The Patriot Act itself ran to 342 pages and
[gave] sweeping new powers to both domestic law enforcement and international intelligence agencies and … eliminated the checks and balances that previously gave courts the opportunity to ensure that these powers were not abused. Most of these checks and balances were put into place after previous misuse of surveillance powers by these agencies, including the revelation in 1974 that the FBI and foreign intelligence agencies had spied on over 10,000 U.S. citizens, including Martin Luther King.44
According to one Humans Rights organization, the USAPA was a ‘rush job’:
even just considering the surveillance and online provisions of the USAPA, it is a large and complex law that had over four different names and several versions in the five weeks between the introduction of its first predecessor and its final passage into law. While containing some sections that seem appropriate – providing for victims of the September 11 attacks, increasing translation facilities and increasing forensic cybercrime capabilities – it seems clear that the vast majority of the sections included have not been carefully studied by Congress, nor was sufficient time taken to debate it or to hear testimony from experts outside of law enforcement in the fields where it makes major changes. This concern is amplified because several of the key procedural processes applicable to any other proposed laws, including inter-agency review, the normal committee and hearing processes and thorough voting, were suspended for this bill.45
The response of Americans was mixed. For many traumatized by the events of September 11th, the Act contained measures which were prudent and deliberate. But the Electronic Frontier Foundation (EFF– a non-profit group re: digital rights) asked, simply “Were our Freedoms the Problem?” Their answer was that the Patriot Act provisions represented a victory for those who would alter the American way of life:
The civil liberties of ordinary Americans have taken a tremendous blow with this law, especially the right to privacy in our online communications and activities. Yet there is no evidence that our previous civil liberties posed a barrier to the effective tracking or prosecution of terrorists. In fact, in asking for these broad new powers, the government made no showing that the pre vious powers of law enforcement and intelligence agencies to spy on US citizens were insufficient to allow them to investigate and prosecute acts of terrorism. The process leading to the passage of the bill did little to ease these concerns. To the contrary, they are amplified by the inclusion of so many provisions that, instead of aimed at terrorism, are aimed at nonviolent, domestic computer crime. In addition, although many of the provisions facially appear aimed at terrorism, the Government made no showing that the reasons they failed to detect the planning of the recent attacks or any other terrorist attacks were the civil liberties compromised with the passage of USAPA.46
The EFF’s chief concerns with the USAPA included:
1 Expanded surveillance with reduced checks and balances. USAPA expands all four traditional tools of surveillance – wiretaps, search warrants, pen/ trap orders and subpoenas. Their counterparts under the Foreign Intelligence Surveillance Act (FISA) that allow spying in the US by foreign intelligence agencies have similarly been expanded. This means:
a Be careful what you put in that Google search. The government may now spy on web surfing of innocent Americans, including terms entered into search engines, by merely telling a judge anywhere in the US that the spying could lead to information that is “relevant” to an ongoing criminal investigation. The person spied on does not have to be the target of the investigation. This application must be granted and the government is not obligated to report to the court or tell the person spied upon what it has done.
b Nationwide roving wiretaps. FBI and CIA can now go from phone to phone, computer to computer without demonstrating that each is even being used by a suspect or target of an order. The government may now serve a single wiretap, FISA wiretap or pen/trap order on any person or entity nationwide, regardless of whether that person or entity is named in the order. The government need not make any showing to a court that the particular information or communication to be acquired is relevant to a criminal investigation.
c ISPs hand over more user information.
d New definitions of terrorism expand scope of surveillance. One new definition of terrorism and three expansions of previous terms also expand the scope of surveillance. They are (1) § 802 definition of “domestic terrorism” (amending 18 USC §2331), which raises concerns about legitimate protest activity resulting in conviction on terrorism charges, especially if violence erupts; adds to 3 existing definitions of terrorism (int’l terrorism per 18 USC §2331, terrorism transcending national borders per 18 USC §2332b, and federal terrorism per amended 18 USC §2332b(g)(5)(B)). These new definitions also expose more people to surveillance (and potential “harboring” and “material support” liability, §§ 803, 805).
2 Over-breadth with a lack of focus on terrorism. Several provisions of the USAPA have no apparent connection to preventing terrorism. These include:
a Government spying on suspected computer trespassers with no need for court order. Sec. 217.
b Adding samples to DNA database for those convicted of “any crime of violence”. Sec. 503. The provision adds collection of DNA for terrorists, but then inexplicably also adds collection for the broad, non-terrorist category of “any crime of violence”.
c Wiretaps now allowed for suspected violations of the Computer Fraud and Abuse Act. This includes anyone suspected of “exceeding the authority” of a computer used in interstate commerce, causing over $5000 worth of combined damage.
d Dramatic increases to the scope and penalties of the Computer Fraud and Abuse Act.
3 Allows Americans to be more easily spied upon by US foreign intelligence agencies. Just as the domestic law enforcement surveillance powers have expanded, the corollary powers under the Foreign Intelligence Surveillance Act have also been greatly expanded, including:
a General Expansion of FISA Authority. FISA authority to spy on Americans or foreign persons in the US (and those who communicate with them) increased from situations where the suspicion that the person is the agent of a foreign government is “the” purpose of the surveillance to anytime that this is “a significant purpose” of the surveillance.
b Increased information sharing between domestic law enforcement and intelligence. This is a partial repeal of the wall put up in the 1970s after the discovery that the FBI and CIA had been conducting investigations on over half a million Americans during the McCarthy era and afterwards, including the pervasive surveillance of Martin Luther King in the 1960s. It allows wiretap results and grand jury information and other information collected in a criminal case to be disclosed to the intelligence agencies when the information constitutes foreign intelligence or foreign intelligence information, the latter being a broad new category created by this law.
c FISA detour around federal domestic surveillance limitations; domestic detour around FISA limitations. Domestic surveillance limits can be skirted by the Attorney General, for instance, by obtaining a FISA wiretap against a US person where “probable cause” does not exist, but when the person is suspected to be an agent of a foreign government. The information can then be shared with the FBI. The reverse is also true.47
This supported the conclusion that the Patriot Act, like anti-terrorism legislation in Canada, Britain and elsewhere was cut from the same ‘security over rights’ cloth. Post September 11th in the United States represented a loss of basic human rights, many of them with very little to do with making America any more secure or fighting terrorism. Nothing under the subsequent Homeland Security Act 2002 altered this view.48
In January2002, the Homeland Security Bill was introduced into Congress. It immediately got bogged down in partisan fighting between Republicans and Democrats, largely over powers it afforded to the president; the Democrats had considerable support from a range of civil liberty, professional and media entities. When the Democrats lost seats in the November 2002 mid-term elections, the new Republican control of both Houses of Congress convinced Democrats to support the legislation. Its late November 2002 passage included 90–9 support in the Senate.
The Act defines terrorism as
Any activity that involves an act that is dangerous to human life or potentially destructive of critical infrastructure or key resources; and is a violation of the criminal Code of the US or any state …; and appears to be intended to intimidate or coerce a civilian population; or to influence the policy of a government by intimidation or coercion; or to affect the conduct of a government by mass destruction, assassination or kidnapping.49
For Fiscal Year 2003, Congress allotted $37.45 billion to the new department. It is divided into four divisions:
1 Border and transportation security.
2 Emergency preparedness and response.
3 Chemical, biological, radiological and nuclear countermeasures.
4 Information analysis and infrastructure protection.
A variety of existing agencies – such as Immigration and Naturalization, Coast Guard, Customs, Border Patrol, Federal Emergency Management Agency, Secret Service, Transportation Security Administration, and the border inspection authority of the Animal and Plant Health Inspection Service were all moved to within the new department. Also Homeland Security will analyze intelligence from sources such as the Central Intelligence Agency, the National Security Agency, the Federal Bureau of Investigations, the Drug Enforcement Agency, as well as the Department of Energy, Customs Service and Department of Transportation.
Critics of the second piece of US anti-terrorism legislation mirrored complaints made in many other democracies about its scope:
The Homeland Security Act that President Bush is poised to sign is sweeping in scope and will have big consequences, intended and unintended, on everything from civil liberties of Americans to due process for immigrants.
Some have little to do with homeland security, but emerged out of the intensive, last-minute bargaining that shaped this effort to refocus the nation's resources to defeat terrorism. As votes on the historic bill wrapped up this week, most lawmakers were still rifling through its 484 pages to find out what’s there.
Its implications went considerably beyond specific anti-terrorism threats, including:
• New authority for agencies to collect and mine data on individuals and groups, including databases that combine personal, governmental, and corporate records – including e-mails and websites viewed.
• Limits on the information citizens can request under the Freedom of Information Act, and criminal penalties for government employees who leak information. This was a top priority for business groups, who worry that disclosing critical information to the new department could expose corporate secrets or vulnerabilities to competitors or terrorists.
• More latitude for government advisory committees to meet in secret – not subject to the requirements of the open meeting laws.
• Limits on liability for those who manufacture “antiterrorism technologies”, including vaccines, gas masks, and baggage screening equipment. As a condition for their votes, several Senate moderates have an agreement from House leaders to revisit some of these provisions when the 108th Congress convenes in January.
• New powers to government officials to declare national health emergencies, including quarantines and forced vaccination.50
As a strategy for gathering legislative approval and co-opting opposition the Homeland Security Act was instructive: many US civil liberties groups ‘welcomed’ the withdrawal of a proposal by Attorney General John Ashcroft called the “terrorism information and prevention system” or TIPS. This allowed for a centralizing of all the ‘snooping activities’ allowed under the USA Patriot Act: Lisa Dean, Director of the Free Congress Foundation says Americans eventually “may find that their conversations have been monitored or [that they’ve been] caught walking past a surveillance camera and be outraged, but find they have no legal recourse”.51
That this centralized information gathering and analysis activity would fall under the aegis of retired Admiral John Poindexter, originally convicted in the Iran-Contra affair, offered more pause to critics wondering whether abuses might occur beyond the task of fighting terrorist threats in the United States.
Among groups questioning the future impacts of the Homeland Security Act was the Electronic Frontier Foundation. Their concerns paralleled those asked by critics across the United States:
• Would law enforcement and the intelligence agencies use these new powers carefully and limit their use to bona fide investigations into acts of terrorism?
• Would, if these laws are misused to spy on innocent people, the courts appropriately punish those who misuse them and Congress re-examine its decision to grant such broad, unchecked powers?
• Would the courts refuse to allow evidence collected through these broad powers if these laws were misused to harm rights and in low level crimes unrelated to terrorism?
Here the answers seem unclear – unless past history offered any guide.
As 2003 rolled toward the second anniversary of the events of September 11, 2001, there was indication that the work of the ‘securitivists’ was far from done. Musings and legislative talk of a USA Patriot II Act, 2003 and other actions and legislative amendments came forward.
According to the Electronic Frontier Foundation, Patriot II legislative drafts included the following:
1 Privacy Invasions. USAPA II dramatically widens the powers of government to invade the privacy of Americans and others living here. This includes:
• Broad new authority to compel information from ISPs, friends, relatives, businesses and others, all without informing you.
• Immunity for businesses that voluntarily turn over your information to law enforcement.
• Extra punishment for use of cryptography – no connection to terrorism needed.
• Instant police access to your credit reports upon certification that they are sought “in connection with their duties” – again, with no connection to terrorism needed.
• Relaxed requirement of specificity for warrants for multi-use devices like PDAs and computers with telephonic capabilities.
• DNA collected from all terrorism suspects/DNA database information open to all law enforcement.
• Less judicial oversight of surveillance.
2 More “end runs” around limitations on surveillance and information sharing. Federal, state and local officials can now freely share information, regardless of the original reason for gathering it. This includes information in your credit reports, educational records and visa records. It also includes information obtained by administrative subpoenas of any business, from your ISP to your credit card company to your grocer. It also includes DNA database information and information obtained through the secret court processes of the Foreign Intelligence Surveillance Act (FISA). Much of this sharing need not have any relationship to terrorism investigation.
3 Gag orders and increased governmental secrecy. The “sunshine of public review” is a key check on abuses of governmental power. But USAPA II makes it even harder for the public to evaluate what the government is doing with its broad new powers. USAPA II allows gag orders for subpoenas that force third parties to turn over information about their friends, loved ones or customers while making it unlawful for them to tell anyone except their lawyers about the subpoena. In a similar vein, the law creates broad new exceptions to the Freedom of Information Act for terrorism detainee information, prevents the Environmental Protection Agency from warning the public about environmental dangers from chemical releases and reduces the ability of judges to force the government to present its evidence in open court.
4 Expanded reach of powers under the control of secret courts. The Foreign Intelligence Surveillance Act (FISA) was enacted more than 20 years ago to handle the special problem of non-criminal investigation of foreign intelligence activities in the United States. For this limited purpose, Congress established an unprecedented secret court system. USAPA expanded the reach of FISA and the secret court dramatically, and USAPA II goes even further. Under USAPA II, the secret court will be able to authorize searches of individuals with no connection to foreign governments or even terrorist organizations. It will increase the length of surveillance and decrease court oversight from the already low levels set by USAPA.
5 Not targeted to terrorism. As with its predecessor, USAPA II contains many provisions that appear to be nothing more than an opportunistic attempt to increase governmental powers in areas unrelated to terrorism. In other areas, while terrorism is included, the provisions are not limited to terrorism-related investigations. These include government access to credit reports, sentence enhancements for using encryption, and sharing of some FISA-obtained information.
The USAPA II, tentatively entitled the “Domestic Security Enhancement Act of 2003”, “like its predecessor, is a grab bag of provisions spread throughout the legal landscape. One clear difference exists, however. Unlike USAPA, USAPA II has no provisions that ‘sunset’ after a certain time. All of its changes are permanent”.52 Even when changes in policy were – as regarding CIA assassination efforts – made permanent, these were not abided by. In summer 2009, Leon Panetta, President Obama’s new CIA Director found out that former VP Dick Chaney had ordered the CIA not to report to Congress on the training of CIA assassination teams to target al-Qaeda leaders around the world – this despite an order made as far back as Gerald Ford in the 1970s for the CIA to cease any such activity.53
As former Canadian Privacy Commissioner George Radwanski has argued,
One of the clearest lessons of history is that the greatest threats to liberty come not when times are tranquil and all is well, but in times of turmoil, when fidelity to values and principle seems an extravagance we cannot afford.
It is a similar sentiment expressed earlier by former US Supreme Court Justice Thurgood Marshall: “history teaches us that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure”. Yet if we are to avoid “the curse of Osama” (who – in a televised statement in October 2001 – predicted that “freedom and human rights in America are doomed. The US government will lead the American people – and the West in general – into an unbearable hell and a choking life”), then some vigilance to excess must be encouraged.
Canada’s Security Intelligence Review Committee recognizes that “in any democratic society security intelligence activities are among the most serious a government can undertake. They warrant the constant and meticulous attention of all who cherish democratic values and civil discourse in a turbulent and dangerous world.” 54
George Radwanski, Canada’s former Privacy Commissioner, offered the most telling test: “If we react to terrorism by excessively and unreasonably depriving ourselves of privacy and the freedoms that flow from it, then terrorism will have won a great and terrible victory.” 55 The deletion of significant data gathering and analysis in Canada’s Public Safety Act allowed George Radwanski to conclude that “a precedent-setting and extraordinarily grave intrusion on privacy rights has been averted in Canada”.56 Their inclusion in American legislation and the significant rebalancing of security vs rights in the name of anti-terrorism in most Western democracies suggests that as the International Helsinki Federation for Human Rights concluded, “anti-terrorism measures introduced since September 11, 2001 … are severely curtailing human rights and civil liberties in much of the world. The measures often threaten freedoms because they are too broad, too vague and applied too arbitrarily”.57 At the start of the twenty-first century’s second decade, these concerns remain.
1 Government of Canada, “Bill C-36”. Available at: www2.parl.gc.ca/HousePublications/Publication.aspx?pub=bill&doc=C-36&parl=37&ses=1&language=E, Accessed 1 July 2009.
2 Ibid.
3 Ibid.
4 Justice Canada “News Release: Government of Canada Introduces Anti-Terrorism Act”, 15 October 2001. Available at: www.collectionscanada.gc.ca/webarchives/20071116041847/http://canada.justice.gc.ca/en/news/nr/2001/doc_27785.html, Accessed 1 July 2009.
5 John Dixon, “Repeat of McCarthy Era Would Imperil Democracy”, The Vancouver Sun, 27 September 2001, p. A15.
6 David Beers, “The New McCarthyism”, The Vancouver Sun, 6 October 2001, p. A6.
7 Patrick J. Smith, “Osama Wins? Resetting Agendas on Balancing Human Rights vs. Security: Canadian Perspectives, American and British Comparisons – Legislative Responses on Anti-Terrorism After 9/11”, lecture/paper for the University of Puget Sound, 31 March 2003. An earlier paper on this theme in Canada was from the Fifth International Centre for Contemporary Middle Eastern Studies conference in North Cyprus, in Spring 2002; see Patrick J. Smith, “Anti-Terrorism and Rights in Canada: Policy Discourse on the ‘Delicate Balance’”, Arab Studies Quarterly, 25(1–2) (2003): 137–158.
8 Bill C-36.
9 Editorial, “Revision Needed, Now, to Terrorist Legislation: Adequate Safeguards Must Control Potential for Abuse”, The Vancouver Sun, 17 October 2001, p. A20. See also Daniel LeBlanc, “Senators Unite Against Anti-terror Bill”, The Globe and Mail, 2 November 2001, p. A10.
10 See, for example, Janice Tibbetts, “Major Changes to Anti-Terrorism Legislation Hinted at by Ottawa: The Justice Minister Says ‘We Are Listening to People’s Concerns’ ”, The Vancouver Sun, 2 November 2001, p. A9.
11 See LeBlanc, op. cit.
12 See, for example, Editorial, “Sunset’s Good Sense”, The Globe and Mail, 2 November 2001, A14. As noted in this editorial,
There are provisions in this bill that should be accepted in the context of an emergency … Those who value the liberties enshrined in the Charter and championed in earlier laws are unwilling to see their curtailment become the status quo, an accepted part of the legislative scenery.
13 See, for example, Jim McNulty, “Liberals to Amend Bungled Anti-Terrorism Act”, The Province, 14 November 2001, p. A23.
14 Ibid.
15 In a brief presented to the House of Commons committee reviewing Bill C-36, Amnesty International Canada, 6 November 2001, Press release.
16 Ibid.
17 Ibid.
18 Ibid.
19 Canadian Press, “Festive Mood at Anti-Terrorism-Bill Sit-In”, The Province, 9 December 2001, p. A25.
20 Department of Justice, Canada “Royal Assent to Bill C-36”, 18 December 2001. Available at: www.canada.justice.gc.ca/en/news/nr2001/doc_28217.html, accessed 7 January 2002.
21 On these see, for example, www.caw.ca/visual+printlibrary/speeches+briefs/110901.asp; www.crr.ca/en/MediaCentre/NewsReleases/eMedCen_NewsRel20011119.htm; www.prochoiceconnection.com/pro-can/0102win.html#terrorism; www.rsf.org/rsf/uk/html/ameriques/cplp01/lp01/121201.html; François Legras, “Canadian ‘Anti-Terrorism’ Law Attacks Democratic Rights”, World Socialist website, 20 November 2001. Available at: www.wsws.org/articles/2001/nov2001/can-n20.shtml, accessed July 2009; www.arena.org.nz/canbil.htm; www.chrc-ccdp.ca/ar-ra/_AR2001RA/AR01RA/annualReport_1_rapportAnnuel.asp; www.canadianliberty.bc.ca/liberty-vs-security/; George Radwanski, “Press Release”, Office of the Privy Commissioner of Canada, 30 November 2001, www.privcom.gc.ca/media/nr-c/02_05_b_011130_e.asp, accessed July 2009; www.policyalternatives.ca; www.geocities.com/ericsquire/articles/np042502.htm; Jacquie Johnson, “Restricting Liberties: Canada Joins the Crowd”, Peace and Environment News, February 2002, www.perc.ca/PEN/2002–02/s-johnson2.html, accessed July 2009; www.canadianactionparty.ca.
23 Transport Canada: www.tc.gc.ca; accessed 12 April 2002.
24 Government of Canada, “Bill C-42”, Parliament of Canada. Available at: www.parl.gc.ca/37/1/parlbus/chambus/house/bills/government/C-42/C-42_1/C-42TOCE.html, accessed July 2009.
25 James Travers, “Bill C-42 Replacement Is Less Offensive than Original”, Torstar News Service, available at: www.hamiltonspectator.com/travers/562775.html, accessed July 2009.
26 David Collenette, Ministerial Statement on Bill C-55, 29 April House of Commons.
27 Attached backgrounders and information are available online at: www.canada.gc.ca.
28 Ibid.
29 www.tc.gc.ca/mediaroom/terrorism/faq.htm, accessed 4 May 2002.
30 www.canada.gc.ca/wire/2002/04/300402_e.html – accessed 30 April 2002.
31 See, for example, Jim Bronskill, “New Anti-Terrorism Bill Worries Privacy Chief: Provisions Would Allow Police to Check Air Travellers”, The Vancouver Sun, 8 May 2002, p. A8, on Radwanski’s letter to Minister of Transport David Collenette.
32 Ibid.
33 Ibid.
34 Editorial, Ottawa Citizen, 23 May 2002.
35 Jim Bronskill, “Passenger List Bill Draws Fire from Watchdog”, The Vancouver Sun, 16 May, 2002, p. A8.
36 See Jim Bronskill, “Security Bill Watered Down: RCMP Would Have Had Increased Powers”, The Vancouver Sun, 1 November 2002, p. A6. The changes accepted by the government will prevent the RCMP from combing airline passenger manifests according to changes tabled on 31 October 2002. but could screen passenger lists for transportation security; CSIS could do likewise for transportation or national security. The revised Public Safety Act would also provide some limits on designating security zones – now limited to established military areas – or ‘on a case-by-case’ basis (in ibid.)
37 See, for example, Canadian Press, “Canadians of Arab Origin Advised Not to Visit the U.S”, The Vancouver Sun, 31 October 2002, p. A9.
38 See Mike Trickey, “U.S. to Ease Entry Rules for Us: Place of Birth No Longer an Automatic Trigger for Rigour, Cellucci tells Graham”, The Vancouver Sun, 1 November 2002, p. A6.
39 Up to the summer 2002 recess, Bill C-55 was in Second Reading in the House of Commons – with Committee stage next. Information provided by Minister of Transportation’s office, 12 June 2002. See also www.parl.gc.ca/bills. Accessed 12 June 2002.
40 There has been a broad discourse initially around terrorism generally, which supported governmental action on C-36 (Anti-Terrorism); then in 2002, much of this shifted to broader public safety issues, (Bills C-42 and C-55) such as bio-terrorism and cyber-terrorism. See, for example, Jeff Lee, “Reno Fears a Cyber Pearl Harbor: Former US Attorney-General Is Not Optimistic That Nations Are Ready for a Sustained Attack on Support Systems Like Food and Transportation”, The Vancouver Sun, 1 May 2002, p. A9; Kathryn May and Jim Bronskill, “Canada Looking for a Few Good E-Spies: CSIS (and CSE) Launches Major Recruitment Drive”, The Vancouver Sun, 13 May, 2002, p. A1; Joseph Brean, “Glory, Fighting Draw Recruits to Join Forces: There’s No Doubt That Sending Troops to Afghanistan Was Very Popular”, National Post, 4 May 2002, p. A10; and Bill Miller and Guy Gugliotta, “‘Dirty’ Bomb Meant to Cause Panic: US Authorities Foil Al-Qaida Operative’s Plan to Detonate a Crude Radiological Weapon”, The Vancouver Sun, 11 June 2002, pp. A1, A5.
41 See Jim Bronskill, “Privacy Watchdog Still Opposes Anti-Terror Bill: George Radwanski Says the Latest Changes Don’t Allay His Fears of a ‘Police State’ ”, The Vancouver Sun, 2 November 2002, p. A6.
42 See George Radwanski, “News Release”, Office of the Privy Commissioner of Canada, 1 November 2002. Available at: www.privcom.gc.ca/media/nr-c/02_05_b_021101_e.asp, accessed July 2009.
43 George Radwanski, “Privacy at the Crossroads”, paper for The Frontiers of Privacy and Security: New Challenges for a New Century Conference, Government of British Columbia, 13 February 2003.
44 On this, see Electronic Frontier Foundation. Available at: www.eff.org/, accessed 12 April 2003.
45 Ibid.
46 Electronic Frontier Foundation, op. cit.
47 Electronic Frontier Foundation, “Analysis of the Provisions of the USA PATRIOT Act”.
48 Susan Herman, “The USA Patriot Act and the US Department of Justice: Losing Our Balances?”, JURIST, December, 2001.
49 Ibid., p. 7.
50 Ibid.
51 Cited in Gail Chaddock.
52 Electronic Frontier Foundation, op. cit.
53 See, for example, Alex Spillius, “Terrorism: CIA Operatives Secretly Targeted Al-Qaida Figures. Cheney Ordered Details Withheld from Congress”, The Vancouver Sun, 14 July 2009, p. B5.
54 Security Intelligence Review Committee, Annual Report, 1998–1999, Government of Canada, 30 September 1999, p. 3.
55 Privacy Commissioner of Canada, Annual Report, 2000–2001, Privacy Commission, 2001, p. 4.
56 Jim Bronskill, “Database Changes Fair, Says Privacy Czar”, The Province, 10 April 2003, p. A26.
57 “Anti-Terror Laws ‘Curb Freedoms’ ”, The Province, 17 April 2003, p. A4.