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How Canada and the U.S. are sharing information warrant-free

The following is a PEN Canada blog post by Avner Levin, Director of Ryerson University's Privacy and Cyber Crime Institute.

“It is common knowledge that Canada is a net importer of intelligence,” notes the 2011-2012 report of the Office of the Communications Security Establishment Commissioner (CSEC). While acknowledging that the “need for information sharing is vital,” the Commissioner adds that it “must be exchanged in compliance with the laws of Canada and must include sufficient measures to protect the privacy of Canadians.” Although CSEC's current arrangements include “a commitment by the partners to respect the privacy of each others' citizens, it is recognized [that] each partner is an agency of a sovereign nation that may derogate from the agreements, if it is judged necessary for their respective national interests.”

Following the widely publicized disclosures that the US National Security Agency had engaged in extensive surveillance of phone calls, email and other private communications from Internet companies, PEN Canada asked Avner Levin, Director of Ryerson University's Privacy and Cyber Crime Institute, to consider the complications that may arise when information sharing arrangements allow national security agencies to circumvent strictures on domestic surveillance.

Peace, Order and Good Government?

If you believe that Canadian authorities such as CSIS and the RCMP must go to court to intercept and read your emails, read on. Yes, you are correct that the straightforward application of Canadian law – our Criminal Code – requires law enforcement agencies to obtain a warrant in order to intercept communications, but recent revelations of the extensive surveillance programs conducted by the American National Security Agency shine a light on the cooperation between the NSA and its counterparts such as the Canadian Communications Security Establishment (CSE), and the warrant-free information sharing it enables.

This cooperation allows law enforcement agencies to circumvent the straightforward restrictions that you believe in, by having the agencies of one country conduct surveillance on the citizens of another country, then share that information with the agencies of the other country. Yes, with the very agencies that are required by their country's law to obtain a warrant prior to such surveillance. To use Canada and the US as an example, the NSA intercepts and collects the communications of Canadians, then shares it with CSIS, the RCMP and other Canadian law enforcement agencies. The CSE intercepts and collects the communications of Americans, then shares it with the FBI, CIA and other American agencies.

Read the full story on PEN Canada's website.

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