Friday, 21 November 2014


We are moving step by step to a world where the national governments in the U.K., Australia, the U.S. and Canada will have a dossier on each of its citizens.  It will be quickly and readily accessible to a number of government officials, security agencies and police.  The information in the dossier will be extensive - it will include detailed financial information, information on tax and GST filings, information on travel history, information on property ownership and information on political tendencies.

This article looks at the development of the information web in Canada - there are similar legislative trends in the U.S., Australia and the U.K. The information web is not yet perfected but it is quickly getting bigger and better.  Most of the legislative framework is in place.  Components of the dossier system in Canada include the following:

Border Crossing Information

On December 13, 2012 Canada signed a Treaty with the United States of America (U.S.) to enable systematic immigration information sharing between the two countries on border crossings.  The Treaty creates a legally binding instrument under international law to govern systematic information sharing.  Two separate implementing arrangements are currently contemplated under the Treaty. The first covers systematic biographic information sharing to be implemented in 2014, and the second will cover systematic biometric information sharing to be implemented in 2015.

Canada and the United States under the so-called bilateral “Entry/Exit Initiative,” are already collecting and exchanging the entry data at all land border ports of entry of third-country nationals, permanent residents, visitors, foreign students and those who are here on work permits.  The personal information collected includes a traveler’s name, date of birth, nationality, sex, document type, document number, work location code/port of entry code, date and time of entry, and the country where the travel document was issued. The scope of the program is being extended to all people traveling through land border crossings, including Canadian and American citizens.  Canadian and American authorities will automatically be notified of every border crossing by a citizen, immigrant or visitor almost instantaneously under the vastly expanded border control system.  The system will track the movements of Canadian and American citizens with "near real-time" exchange of information between government agencies.   Ultimately, in the program’s final phase, Canada will develop a system to establish exit records similar to those in the United States, where airlines are required to submit passenger info on outbound international flights.

The program will pass the tracking information on to other federal departments in Canada and the United States.  The Canada Border Services Agency has confirmed the new practice and said data would be passed on only in accordance with stringent rules. CBSA spokesperson Esme Bailey would not say if this new program would be used as an enforcement tool for purposes other than border security, however, she said “access to the information will be limited to designated users with an operational requirement for the information on a “need-to-know” basis. But the revelation is raising questions about privacy, how the information will be used and whether the federal government plans to use this data to crack down on immigration, citizenship, health and tax cheats. 

The United States will be allowed to share information about Canadians with other countries under a sweeping border deal.  The U.S. will not be required to explicitly tell Canada about its plan to pass along the personal details.

Immigration policy analyst Richard Kurland said “With this system, it is a blank cheque to the Big Brother. Where you go and when you go becomes government property.”  Kurland noted that the data collected can be used as an enforcement tool of immigrant residency and citizenship laws for newcomers, as well as in the application of health care and taxation rules for Canadian citizens by counting their days spent in Canada.


The Strengthening Canadian Citizenship Act, known as Bill C-24, which was enacted in July, 2014, contains provisions which gives Ottawa broad new powers to disclose information. It is not yet known to whom such information will be disclosed as he Act gives the government power to pass a set of regulations which will set out the details to whom and under what circumstances such information will be disclosed.   

In fact regulations may be passed under the Act to  provide for the collection, retention, use, disclosure and disposal of information for the purposes of the Act.  Regulations may also provide for the disclosure of information for the purposes of national security, the defence of Canada or the conduct of international affairs.   International Affairs includes the implementation of an agreement or arrangement entered into under section 5 of the Department of Citizenship and Immigration Act or in other words an agreement for information sharing with a foreign government.  Additionally regulations may be passed to provide for the disclosure of information to verify the citizenship status or identity of any person for the purposes of administering any federal or provincial law or law of another country.  Finally regulations may provide for the disclosure of information for the purposes of cooperation within the Government of Canada and between the Government of Canada and the government of a province.  To summarize, information may be shared with other federal departments, with provincial departments and with foreign governments.  There is no guarantee that this information will be narrowly restricted to relevant immigration issues.  Given that other provisions of the Act require prospective citizens to make broad disclosure of their personal affairs, the government dossiers on New Canadians will have some extra heft. 

Income Tax Enforcement

Section 241 of the Canadian Income Tax Act seemingly requires the CRA to keep taxpayer information confidential but this traditional privacy notion has been largely amended out of existence.  There is a long list of exceptions to Section 241.  Information can be disclosed to Canadian government officials when it can reasonably be regarded as necessary for the purposes of the administration or enforcement of the Income Tax Act, the Canada Pension Plan, or the Employment Insurance Act. It can be disclosed to provincial governments for purposes of the administration of the workers' compensation program, for the use in the management or administration of a program relating to earning supplementation or income support or for use in the management or administration by that government of a program relating to payments under subsection 164(1.8) of the Act. 

The Minister may, where the taxpayer is, or is about to become, liable to make any payment to the federal government or to a province, apply the amount of the refund or repayment to that other liability and notify the taxpayer of that action.  Refunds can also be redirected for a child maintenance payment made pursuant to provincial law. 

There are a host of other exceptions.  Information can be passed to a government official for the purposes of formulation or evaluation of fiscal policy; to a police officer or a Canada Customs officer for the purpose of investigating whether an offence has been committed under the Criminal Code and to “appropriate persons” if the information relates to the imminent danger of death or physical injury to any individual.  The Income Tax Act also provides that taxpayer information may be disclosed to the Canadian Security Intelligence Service, the Royal Canadian Mounted Police or the Financial Transactions and Reports Analysis Centre of Canada where the information may be used by these organizations to assist with ongoing investigations related to national security.  This disclosure provision was introduced as part of the recent package of “terrorism-related” legislation.

Section 79 of the Family Orders and Agreements Enforcement Assistance Act provides access to so-called  information banks maintained by various federal government departments, and where there is an information agreement, provincial departments notwithstanding any provision in any other Act of Parliament that prohibits or restricts the release of information.

The Canada Revenue Agency (CRA) can enter into written collaborative arrangements, such as Information Sharing Agreements (Agreements), with federal, provincial and territorial departments.  For example the Agreement with the British Columbia Vital Statistics Agency (BCVSA) has been in effect since July 28, 2009.  The CRA can give information to other countries with which Canada has a tax treaty that authorizes the exchange of information.  These include a Tax Information Exchange Agreement ("TIEA“) or a listed international agreement, which includes the Organization for Economic Co-operation and Development ("OECD") Agreement.

Foreign Account Tax Compliance Act

The Foreign Account Tax Compliance Act requires Canadian financial institutions to supply comprehensive financial information to the Canada Revenue Agency which then turns it over to the Internal Revenue Service in the U.S.  The agreement provides that if an account holder is a “U.S. person” (such as U.S. residents and/or U.S. citizens (including U.S. citizens who are residents or citizens of Canada), the financial institution will be required to collect and report information on the account to the CRA in respect of that account holder. The information that will be collected and shared with the IRS will include information about the account holder including his or her name, address, the individual's U.S. taxpayer identification number and certain financial information pertaining to the account.  This information will be transmitted by the CRA to the IRS under the existing provisions of the Canada-U.S. tax treaty relating to exchange of information.

The Operations Centre Information Portal

The Canadian Safety and Security Program (CSSP), led by Defence Research and Development Canada's Centre for Security Science and the Government Operations Centre (GOC), have developed the OCIP which is a system that enhances the GOCs ability to share data immediately across federal operations centres.  It gathers information on all types of events affecting Canadians at home and abroad ranging from a local fire department responding to a forest fire, to special security arrangements for visits from international dignitaries.  The portal was created with the express purpose of organizing incoming information and readily sharing what's relevant with many operations centres at the click of a mouse.   It gives users the ability to share documents quickly, track ongoing events, and issue notices about incidents of interest. It also has a number of collaborative custom-built features such as a chat tool, a Request for Information tracker, and an incident management log to categorize incoming alerts.  Recently, an `automatic messaging' feature was added which allows alerts to be sent to offline operations centres users when a request for information is posted.

Initially only a few key federal departments had access to this so-called tool but it now employed by 21 federal departments and agencies, with more likely to join in 2015.  Federal agencies using the portal are currently looking at how it could be used in their regional offices.  The use of common data standards in OCIP will allow for continued growth in the future.  

The Internet

One of the documents retrieved by U.S. whistle blower Edward Snowden showed that Canada's electronic spy agency uses information from the free internet service at a major Canadian airport to track the wireless devices of thousands of ordinary airline passengers for days after they left the terminal.  This is probably illegal since the spy agency is supposed to be collecting primarily foreign intelligence by intercepting overseas phone and internet traffic, and is prohibited by law from targeting Canadians or anyone in Canada without a judicial warrant.  Security experts who have been apprised of the document point out the airline passengers in a Canadian airport were clearly in Canada.  CSEC justified its actions by claimiing that it is "mandated to collect foreign signals intelligence to protect Canada and Canadians and that in order to fulfill that foreign intelligence role for the country, it is legally authorized to collect and analyze metadata.

The kind of metadata being collected is more than just "phone book" information.  It reveals a trove of information including, for example, the location and telephone numbers of all calls a person makes and receives.  Knowledge of subscriber information, such as phone numbers and IP addresses, can provide a starting point to compile a picture of an individual's online activities, including online services for which an individual has registered, personal interests based on websites visited; and organizational affiliations.  It can also provide a sense of where the individual has been physically (e.g., mapping IP addresses to hotel locations, as in the Petraeus case). 

This information can be sensitive in nature in that it can be used to determine a person's leanings, with whom they associate, and where they travel, among other things.  What's more, each of these pieces of information can be used to uncover further information about an individual. 

Bill C-13

Frank Addario, a Toronto-based lawyer, notes that digital data surveillance gives the state virtually unfettered access to eavesdrop or read every single personal communication with no mechanism for accountability.  He suggests that the government has done nothing to rein in police techniques to obtain digital information from third party carriers like cell phone and social media providers. “By not recognizing the pressure that state snoops put on these regulated carriers, the government has delivered us into a post-privacy world.”

The Supreme Court of Canada in the Spencer case tried to put the brakes on the police coercing third party carriers to hand over digital information. Addario questions whether the courts are an adequate “substitute for legislative control of surveillance techniques to restrain overenthusiastic intelligence collectors”.  It is unlikely that such legislative control is forthcoming. Rather than trying to restrain overenthusiastic intelligence collection the Harper government has made repeated attempts to legalize it.  Their latest effort is BILL C-13 which has now passed through the House of Commons and is on to the Senate.  Bill C-13, if passed, will give police easier access to the metadata that internet service providers and phone companies keep on every call and email by their customers.  It will make it easier for police to get preservation or production orders by lowering the threshold from a "reasonable grounds to believe" a crime has happened or could happen to "reasonable grounds to suspect."  Most significantly, the bill will give immunity to any companies that turn over to police the information they hold.  Although these companies might not be compelled to hand over the information, past experience shows that they usually accede to police pressure especially if it has no negative legal consequences.

Privacy Laws

Provincial governments are increasingly exempting themselves from the operation of privacy laws. In 2011 the B.C. government amended the Freedom of Information and Privacy Act to increase the ability of government ministries to share citizens' information amongst themselves and centralize that data electronically.  The legislation, among other changes, lets ministries share information when government programs involve more than one department, permits use of so-called data linking to combine existing databases, such as for research and allows for the creation of a super ID combining driver's licences and health-care cards.


Government, provincial and federal, are erecting a vast information structure exemplified by the Operations Centre information Portal.  This is BIG DATA IN FULL FLIGHT. There are still technological weaknesses in the structure but it highly likely that there will soon be a time when certain government officials, spy agencies and the police will be able to bring forth a detailed dossier on each and every Canadian citizen by inputting a name, a social security number and an address.  This dossier will not only give a detailed description of a person’s life history, it will have point in time accuracy.  Our governments assure us that they have instituted internal reviews and controls to prevent misuse of this information but history tells us that internal bureaucratic run controls are useless.  Governments also tell us that the information web will only be used for good purposes - catching terrorists, drug dealers, child pornographers, cyber bullies, criminals generally.  We should note, however, that federal and provincial governments have been busy creating new crimes, new offenses.  All sorts of social misbehavior are being criminalized or semi-criminalized.  Punishments for provincial offences are constantly being made more severe. In a society where almost everyone is a criminal or potential criminal almost everyone is a government surveillance target. 

No comments:

Post a Comment