Light and Obar, Surveillance Harms

11.
Surveillance reform: revealing surveillance harms

and engaging reform tactics
Evan Light and Jonathan A. Obar
1. INTRODUCTION
In the years since the September 11, 2001 attacks on the World Trade Center and the
Pentagon, systems of indiscriminate state surveillance have targeted private communica-
tions, eroding human rights to privacy and expression. While state surveillance existed
previously, governments in Canada, the United States and the United Kingdom have,
since 2001, ‘reinforced and intensified’ existing surveillance systems, methods1 and
legislative frameworks.2 As David Lyon notes, ‘surveillance has become algorithmic,
technological, pre-emptive, and classificatory, in every way broadening and tightening the
net of social control and subtly stretching the categories of suspicion’.3 Digital forms of
community and sociality are now coupled with an unfettered digital surveillance, defined
here as the systematic and indiscriminate capture and analysis of digital communications
(telephonic or online). This process treats us as perpetual suspects, not because we engage
in illegal activities, but because we communicate and exercise our right to freedom of
expression. As a result, mass surveillance by the state is harmful to the relationships that
undergird both the infrastructure of digital communication4 and democratic society. In
societies premised on not simply concepts of human rights, but the everyday enactment
of these rights, this is problematic. While a certain level of surveillance in society may
be deemed necessary for the basic maintenance of the rule of law,5 it can and should be
undertaken in a manner that safeguards the right to privacy. Though the right to privacy
was enshrined in the United Nations Universal Declaration of Human Rights6 in 1948,
championed by subsequent national and international declarations7 and legislative
1
David Lyon, Surveillance After Snowden 15 (2015).
2
Lawyers Committee for Human Rights (US), Fiona Doherty and Eleanor Acer, Assessing
the New Normal: Liberty and Security for the Post-September 11 United States 15–30 (2003),
available at www.humanrightsfirst.org/pubs/descriptions/Assessing/AssessingtheNewNormal.pdf
(last accessed November 23, 2016).
3
Lyon, Surveillance After Snowden, n. 1 above, 142.
4
Fen Osler Hampson and Eric Jardine, Look Who’s Watching: Surveillance, Treachery
and Trust Online 8–15 (2016).
5
Access et al., Necessary and Proportionate: International Principles on the Application
of Human Rights to Communications Surveillance (2014).
6
United Nations, The Universal Declaration of Human Rights (1948), available at www.
un.org/en/documents/udhr/ (last accessed August 10, 2011).
7
Ritu Khullar and Vanessa Cosco, Conceptualizing the Right to Privacy in Canada
(2010), available at www.cba.org/cba/cle/PDF/adm10_khullar_paper.pdf; Colin J. Bennett and
Charles D. Raab, The Governance of Privacy: Policy Instruments in Global Perspective 4
(2nd and updated edn 2006).
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196 Research handbook on human rights and digital technology
efforts,8 technological development coupled with a concomitant lack of advancement in

law perpetuates a void of ungovernability, or what Dan McQuillan terms an ‘algorithmic
state of exception’.9 Technology simply advances more quickly than law does,10 making it
difficult if not impossible for individuals to maintain these rights today. The notion that
privacy is a privilege, rather than a right, has also been blithely perpetuated by industries
that increasingly generate revenue based on the collection, aggregation, and analysis of
personal data, and government seeking to ensure our collective security by engaging in
similar practice.11 Privacy, however, remains a human right and state mass surveillance is
an indiscriminate violation of this right on a global scale. In order for privacy to be a right
that is actionable, serious reform is required both in the legislative and the technological
realms. Adopting a diversity of tactics, surveillance reform efforts and policy-making
models of the future must be at once nimble and responsive, bold and proactive. These
efforts must seek to address current issues and to future-proof privacy safeguards by
making them integral to technological and legislative design.
We seek here to discuss state surveillance harms and to propose surveillance reform tac-
tics with the aim of supporting efforts to ensure fundamental human rights are respected,
and the legal, technical and social mechanisms of state surveillance are transparent and
accountable, governed and governable. Crafting policy and law is a community undertak-
ing and we hope for these tactics to be usable by policy-makers and civil society alike.
While the majority of examples we cite are Canadian, we believe they may be replicable
in other international contexts.
Reform, by definition, refers to a process or end defined by improvement. Thus, the
type of reform to be achieved is relevant to the perceived challenge to be addressed as
well as the desired outcome. For instance, when discussing surveillance reforms, one
might suggest that the US signals intelligence agency, the National Security Agency
(NSA), is engaging in reforms as it completes construction of a billion-dollar ‘spy
center’ in Bluffdale, Utah, capable of housing in its ‘near-bottomless databases’ all of the
communications that pass through US Internet infrastructure, ‘including the complete
contents of private emails, cell phone calls, and Google searches, as well as all sorts of
personal data trails – parking receipts, travel itineraries, bookstore purchases, and other
digital “pocket litter”’.12 Similarly, north of the border, reforms could refer to govern-
ment investment in Canada’s own billion-dollar signals intelligence facility in Ottawa,13
8
Rolf H. Weber and Dominic N. Staiger, Privacy Versus Security: Identifying the Challenges in
a Global Information Society, in Cybersecurity and Human Rights in the Age of Cyberveillance
(Joanna Kulesza and Roy Balleste eds., 2015).
9
Dan McQuillan, Algorithmic States of Exception, 18 Eur. J. Cult. Stud. 564–76 (2015).
10
Jonathan A. Obar and Steven S. Wildman, Social Media Definition and the Governance
Challenge: An Introduction to the Special Issue, 9 Telecommunications Policy 745 (2015).
11
Bruce Schneier, Data and Goliath: The Hidden Battles to Collect Your Data and
Control Your World (2015).
12
James Bamford, The NSA is Building the Country’s Biggest Spy Center (Watch What You
Say), WIRED (2012), available at www.wired.com/2012/03/ff_nsadatacenter/all/1/ (last accessed
November 30, 2016).
13
Greg Weston, Inside Canada’s Top-Secret Billion-Dollar Spy Palace, CBC News (2013), avail-
able at www.cbc.ca/news/politics/inside-canada-s-top-secret-billion-dollar-spy-palace-1.1930322
(last accessed November 30, 2016); Communications Security Establishment, The Edward

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Surveillance reform 197
or the 2015 passage of the Anti-Terrorism Act (C-51) expanding the digital surveillance
capabilities of the Canadian government.14 Our conceptualization of surveillance reform,
however, is quite the opposite, and parallels definitions associated with historical and
ongoing media reform efforts throughout the world, which aim to shine a light on the
threats to civil liberties associated with the concentration of communicative resources
and power.15 Battles for media and now surveillance reform are, inherently, battles for
control over communication rights, and as a result, an extension of ‘part of a wider
challenge to social and economic inequalities and an essential component of a vision for
a just and democratic society’.16 One difference between media reform and surveillance
reform is the former often involves battling neoliberal attempts to deregulate that promote
corporatization and consolidation of the media, whereas surveillance reformers often
oppose regulatory efforts, like C-51, that aim to expand the surveillance capabilities of
governments. It is worth noting that there are examples where surveillance reform efforts
do champion regulatory expansion, such as calls in Canada (discussed further on) for
government investment in network infrastructure that might impede ‘boomerang routing’
of domestic Canadian Internet traffic through the United States, subjecting Canadian
transmissions to NSA surveillance.17 Where the greatest similarity exists, however, is that
both aim to advance:
a field in which multiple actors use a range of techniques and capacities to restructure communi-
cation systems in the interests not of privileged elites (whether state or market) but of ordinary
users, viewers, readers, and listeners so that they might participate better in and make informed
choices about the world in which they live.18
This chapter is divided into three sections. Surveillance harms are discussed first in
the context of journalism, lawyers and law-makers, the general public and the corporate
world. The second section addresses a number of tactics reformers can engage to address
these and other surveillance harms. The tactics include: digital mobilization against regu-
latory efforts to expand state surveillance; building a popular non-partisan movement;
advocating for repatriation of domestic Internet traffic through network sovereignty
Drake Building Government of Canada (2016), available at www.cse-cst.gc.ca/en/accommoda

tion-installation (last accessed November 30, 2016).
14
Legislative Services Branch, Consolidated Federal Laws of Canada, Anti-terrorism Act
(2003), available at http://laws-lois.justice.gc.ca/eng/acts/a-11.7/ (last accessed November 30, 2016);
Canadian Civil Liberties Association, Understanding Bill C-51: the Anti-terrorism Act,
2015 (2015), available at https://ccla.org/understanding-bill-c-51-the-anti-terrorism-act-2015/ (last
accessed November 30, 2016).
15
Des Freedman and Jonathan A. Obar, Media Reform: An Overview, in Strategies for
Media Reform 3–18 (2016), available at www.jstor.org/stable/j.ctt1ctxqc9.4.
16
Ibid. 5.
17
Jonathan A. Obar and Andrew Clement, Internet Surveillance and Boomerang Routing: A
Call for Canadian Network Sovereignty, in Proceedings: Technology and Emerging Media
Division, Canadian Communication Association Conference (Philippe Ross and Jeremy
Shtern (eds.), Victoria, BC: University of Victoria, 2013), available at www.acc-cca.ca/resources/
Documents/TEM_proceedings/TEM_2013/OBAR-CLEMENT-TEM2013.pdf (last accessed
August 17, 2016).
18
Freedman and Obar, Media Reform, n. 15 above, 5.

WAGNER_9781785367717_t.indd 197 13/12/2018 15:25

efforts; financial activism; and the design of an international policy standard. The chapter
concludes with reflections on the potential for surveillance reform in Canada.
Just as mass surveillance has become a diversified enterprise, surveillance reform efforts
too must engage varied tactics at community, state and international levels. This demands
that reformers innovate both in terms of their thinking about the range of surveillance
harms, and concurrently, about the necessary tactics for reform.
2. SURVEILLANCE HARMS
Systems of surveillance, accounting for the acts and movements of individuals, have
existed as tools for social control for centuries.19 The expansion of digital technology
capable of monitoring our everyday actions has, in part, led to a vast expansion of
corporate and governmental surveillance activities. In this section we discuss surveillance
harms that threaten journalism practice, lawyers and law-makers, the general public and
the corporate world.
2.1 Mass State Surveillance and Journalism
The human rights of privacy, freedom of expression and freedom of assembly are
closely interlinked, especially when considered as bedrocks of democratic society. In the
American case, these rights are enshrined in the First and Second Amendments of the
US Constitution;20 in Canada they are included in the country’s Charter of Rights and
Freedoms.21 The ability to exercise these rights on an ongoing basis contributes to the
development of critical journalism, and the social organizing and political innovation
that may follow. The threat that one’s communications may be constantly observed and
judged – whether or not this is truly the case – significantly alters the ways in which
individuals conduct themselves. This is the key to the classic concept of a self-regulating
prison (Jeremy Bentham’s Panopticon), that people behave differently when they believe
they may be watched at any moment.22 Systems of state mass surveillance extrapolate
this model of social control to the level of society itself and have demonstrable effects
on freedom of expression and democratic governance. For journalists playing the role
of the watchdog of industry and government, privacy and the ability to protect one’s
sources is crucial. Journalistic sources provide society with insight into worlds otherwise
off-limits, including government surveillance processes23 as well as political corruption.24
19
Robin Tudge, The No-Nonsense Guide to Global Surveillance 22–47 (2010).
20
National Archives, The Bill of Rights: What Does it Say? (2016), available at www.
archives.gov/founding-docs/bill-of-rights/what-does-it-say (last accessed November 16, 2016).
21
Legislative Services Branch, Consolidated Federal Laws of Canada, Access to Information
Act (2015), available at http://laws-lois.justice.gc.ca/eng/Const/page-15.html (last accessed November
10, 2016).
22
Emily Horne and Tim Maly, The Inspection House: An Impertinent Guide to Modern
Surveillance (2014).
23
G. Alex Sinha, With Liberty to Monitor All: How Large-Scale US Surveillance is
Harming Journalism, Law and American Democracy (2014).
24
Quebec Government Didn’t Care About Corruption Report, Says Whistleblower, Toronto

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A 2014 Human Rights Watch report quotes numerous journalists observing the new
post-Snowden reality wherein they understand that surveillance can be used to determine
the sources of leaked information.25 In November 2016, it was revealed that the Montreal
police and Quebec provincial police had surveilled nine journalists from a number of
media organizations in order to determine the sources of multiple leaks concerning
political corruption and abuses by the judiciary. The phone communications of some of
these journalists had been surveilled for five years at a time.26 None of these journalists has
been charged, but they and their sources have been directly intimidated. A recent study
of 129 writers and journalists in Canada showed that ‘mass surveillance is prompting
writers and journalists to self-censor’ both the content of their stories and the research
they undertake.27 The threat or enactment of surveillance directly impedes the ability
of journalists to work with unofficial sources such as whistle-blowers and to ask critical
questions without the threat of reprisal.
2.2 Mass State Surveillance, Lawyers and Law-Makers
Client-attorney privilege is seen to be a ‘principle of fundamental justice and a civil

right of supreme importance in Canada’,28 the United States29 and Europe.30 Since the
Snowden revelations, members of the legal communities in these areas have begun to
assess the impact of these surveillance activities on their profession. According to the Law
Society of British Columbia,31 the Council of Bars and Law Societies of Europe32 and
Human Rights Watch,33 surveillance of client-attorney communications is a threat to the
rule of law. Attorneys cannot necessarily defend their cases against the state if the state is
party to supposedly confidential communications. Surveillance is also a threat to the abil-
ity of individuals and civil society organizations to engage in legal challenges pertaining to
Star, available at www.thestar.com/news/canada/2012/06/14/quebec_government_didnt_care_

about_corruption_report_says_whistleblower.html (last accessed November 11, 2016).
25
Sinha, With Liberty to Monitor All, n. 23 above, 27–28.
26
Evan Light and Stephane Couture, In the Words of Snowden, Spying on Journalists
in Quebec ‘Is a Radical Attack on Journalism of the Free Press’ (2016), available at www.
glendon.yorku.ca/communications/2016/11/03/words-snowden-spying-journalists-quebec-radical-
attack-journalism-free-press/ (last accessed November 11, 2016).
27
Centre for Free Expression, Ryerson University, Chilling Free Expression in
Canada: Canadian Writers’ and Journalists’ Views on Mass Surveillance 3–6 (2016), avail-
able at https://cfe.ryerson.ca/sites/default/files/Chilling_Free_Expression_in_Canada_FINAL_
NOV_9_2016.pdf.
28
Law Society of British Columbia, Ethics Committee, Surveillance of Electronic
Communications 1 (2015), available at www.lawsociety.bc.ca/docs/about/Surveillance.pdf (last
29
30
Counseil des Barreaux Européens, CCBE Comparative Study on Governmental
Surveillance of Lawyers’ Data in the Cloud 2 (2014), available at www.ccbe.eu/NTCdocument/
EN_04042014_Comparat1_1400656620.pdf (last accessed November 11, 2016).
31
Communications, n. 28 above.
32
Counseil des Barreaux Européens, CCBE Comparative Study on Governmental
Surveillance, n. 30 above.
33

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mass surveillance and other matters. For instance, one attorney at Privacy International
informed us that he assumed his web searches were being surveilled as he prepared for legal
challenges against the United Kingdom’s Government Communications Headquarters
(GCHQ).34 There have also been documented reports of state surveillance targeting
lawyers involved in cases as diverse as terrorism and trade disputes.35 The American Bar
Association has, for close to ten years, recommended its members be cautious when com-
municating electronically with clients.36 While the surveillance possibility has contributed
to an environment wherein many legal professionals cannot trust their communications
will be secure, some privacy advances have occurred. In the Netherlands in 2015, the
Council of Bars and Law Societies of Europe was able to successfully challenge the Dutch
government’s surveillance of lawyers’ communications.37
State surveillance also affects law-makers and their ability to consult in private. In light
of the Snowden revelations that unveiled the majority of UK telecommunications were
being surveilled by GCHQ, two sitting members of the UK Parliament and one former
member challenged this data collection programme at the Investigatory Powers Tribunal
(IPT), the judicial authority overseeing the UK intelligence services. The MPs claimed
that an agreement from 1966, called the Wilson Doctrine, protected sitting members of
Parliament from state surveillance. The IPT, however, ruled that this doctrine had no basis
in law and was, instead, a ‘gentleman’s agreement’.38 The parliamentarians contested the
ruling, stating that it impedes their abilities to be trusted law-makers capable of meeting
privately with constituents and working to hold government bodies accountable.39 While
similar situations may exist elsewhere, legislators in other countries have not yet made
such legal challenges, as judicial bodies such as the IPT rarely exist. Canadian parliamen-
tarians are unsure of their situation with regard to state surveillance, as members of the
Standing Committees charged with crafting and overseeing legislation rarely have the
security clearances necessary to acquire the necessary information.40 In addition, Canada
has no judicial oversight bodies to which parliamentarians or any other citizen can apply
for relief.
34
Eric King, Interview with Eric King, Deputy Director of Privacy International, London,
England, 2015.
35
Communications, n. 28 above; Sinha, With Liberty to Monitor All, n. 23 above, 56–58.
36
Steve Thomas, The Expectation of Surveillance: Can Lawyers Ethically Continue
Using Unencrypted Email? (McGuire, Craddock & Strother, 2014), available at www.mcslaw.
com/firm-news/expectation-surveillance-can-lawyers-ethically-continue-using-unencrypted-email/
37
Delissen Martens, Surveillance of Lawyers Delissen Martens, available at www.delissenmartens.
nl/nl/nieuws/surveillance-of-lawyers (last accessed November 11, 2016).
38
Mr Justice Burton, Caroline Lucas Judgment (2015), available at www.ipt-uk.com/judgments.
asp?id=29.
39
Tom Whitehead, GCHQ Can Spy on MPs, Tribunal Rules, Daily Telegraph (2015), avail-
able at www.telegraph.co.uk/news/uknews/defence/11930721/MPs-do-not-have-special-protection-
from-being-spied-on-tribunal-rules.html (last accessed November 16, 2016).
40
Interview with Senator Grant Mitchell, Deputy Chair of Standing Committee on National
Security and Defence, Parliament of Canada, 2015; Kent Roach, Permanent Accountability Gaps
and Partial Remedies, in Law, Privacy and Surveillance in Canada in the Post-Snowden Era
163–203, at 164–65 (Michael Geist ed., 2015).

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2.3 Mass State Surveillance and the General Public
Indiscriminate mass surveillance can affect what people are willing to say and do
publicly.41 Research on Internet search behaviour in 11 different countries has shown
‘empirical documentation of a chilling effect, both domestically and internationally
in the longer term, that appears to be related to increased awareness of government
surveillance’.42 Other empirical findings suggest a similar effect on the use of Wikipedia.43
A 2015 Pew Center study suggested heightened public awareness within the United States
concerning surveillance. Of 534 respondents, 25 per cent claimed to have changed their
digital communication behaviour ‘a great deal’ or ‘somewhat’.44 Studies conducted in
the United Kingdom and the European Union found public awareness of state surveil-
lance increasing, with some noting that up to 82 per cent of respondents felt concerned
about their online communications.45 Similarly, a pair of surveys of 24,000 respondents
around the world conducted by CIGI and Ipsos has shown increasing levels of concern
about state censorship.46 Finally, PEN International’s 2015 study of writers suggests
that those living in liberal democratic countries have begun to engage in self-censorship
at levels approaching those seen in non-democratic countries. Writers are concerned
that expressing certain views even privately or researching certain topics may lead to
negative consequences.47 As the case of Maher Arar demonstrates, the negative effects
of mass surveillance on individuals are neither theoretical nor limited to self-censorship.
This Canadian-Syrian citizen was detained in a New York airport and renditioned to
Syria by the US government, tortured and imprisoned based on ‘faulty intelligence’.48
41
Christopher Parsons, Beyond Privacy: Articulating the Broader Harms of Pervasive Mass
Surveillance, 3 Media Commun. 1, 7 (2015).
42
Alex Marthews and Catherine Tucker, Government Surveillance and Internet Search
Behavior (SSRN 2412564, 2015), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_
id=2412564 (last accessed November 30, 2016).
43
Jon Penney, Chilling Effects: Online Surveillance and Wikipedia Use, 31 Berkeley Technol.
Law J. 117 (2016).
44
Lee Rainie and Mary Madden, How People are Changing Their Own Behavior (Pew
Research Center, Internet, Science & Tech, 2015), available at www.pewinternet.org/2015/03/16/
how-people-are-changing-their-own-behavior/ (last accessed October 5, 2016).
45
Ibid.; Vian Bakir et al., Public Feeling on Privacy, Security and Surveillance (2015),
available at www.dcssproject.net/files/2015/11/Public-Feeling-on-Privacy-Security-Surveillance-
DATAPSST-DCSS-Nov2015.pdf; Maria Grazia Porcedda, Martin Scheinin and Mathias
Vermeulen, Surprise: Surveillance, Privacy and Security: A Large Scale Participatory
Assessment of Criteria and Factors Determining Acceptability and Acceptance of
Security Technologies in Europe (2013).
46
Fen Osler Hampson and Eric Jardine, Look Who’s Watching: Surveillance, Treachery
and Trust Online 76–78 (2016).
47
PEN America, Global Chilling: The Impact of Mass Surveillance on International
Writers 5 (2015), available at https://pen.org/sites/default/files/globalchilling_2015.pdf.
48
Colby Itkowitz, From Tortured Terrorist Suspect to Entrepreneur: How This Canadian Father
Got His Life Back, The Washington Post (April 27, 2016), available at https://www.washing
tonpost.com/news/inspired-life/wp/2016/04/27/from-accused-terrorist-to-canadian-entrepreneur-
maher-arar-is-finally-getting-his-life-back; Jeff Sallot, How Canada Failed Citizen Maher Arar,
The Globe and Mail (September 19, 2006), available at https://www.theglobeandmail.com/news/
national/how-canada-failed-citizen-maher-arar/article1103562/.

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A Canadian federal inquiry into his case absolved him of any wrong-doing.49 Numerous
other examples have been compiled in recent reports documenting the surveillance-related
endangerment, harassment, imprisonment or assassination of journalists, activists,
religious leaders and other citizens around the world.50 As harms emerge and members of
the general public feel threatened, strategies are being discussed for individuals to protect
themselves. For example, after the November 2016 election of Donald Trump as president
of the United States, a number of newspaper and web publication articles addressed state
capacity for surveillance as well as how citizens might protect themselves when engaged
in everyday acts of free speech51 and public protest.52
2.4 State Mass Surveillance and Harm to the Corporate World
The corporations that develop, own and maintain the world’s telecommunications
infrastructure, in large part, make state surveillance of digital communications pos-
sible. This occurs either through direct collaboration or through state hacking of
infrastructure.53 Corporations thus bear some responsibility for surveillance threats and
outcomes.54 The potential effects of state surveillance on public sentiment, in particular,
a distrust of digital communications and of its facilitators, suggest the potential for
49
Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher
Arar, Report of the Events Relating to Maher Arar: Analysis and Recommendations
(2006).
50
Privacy International and Amnesty International, Two Years After Snowden,_Final
Report (2015), available at www.privacyinternational.org/sites/default/files/Two%20Years%20
After%20Snowden_Final%20Report_EN.pdf (last accessed September 4, 2015); International
Network of Civil Liberties Organizations, Surveillance and Democracy: Chilling
Tales from Around the World (2016), available at https://ccla.org/cclanewsite/wp-content/
uploads/2016/11/Surveillance-and-Democracy-INCLO-report.pdf.
51
Micah Lee, Surveillance Self-Defense Against the Trump Administration, The Intercept
(2016), available at https://theintercept.com/2016/11/12/surveillance-self-defense-against-the-trump-
administration/ (last accessed November 14, 2016); Charlie Savage, Harsher Security Tactics?
Obama Left Door Ajar, and Donald Trump Is Knocking, New York Times, November 13, 2016,
available at www.nytimes.com/2016/11/14/us/politics/harsher-security-tactics-obama-left-door-ajar-
and-donald-trump-is-knocking.html (last accessed November 14, 2016); Joshua Kopstein, Signal
Downloads Spiked After Election Results, Motherboard (2016), available at http://mother
board.vice.com/en_ca/read/signal-downloads-spiked-after-election-results (last accessed November
14, 2016); Kirstie Ball, Sally Dibb and Sara Degli Esposti, Citizen Summits on Privacy,
Security and Surveillance: Country Report United Kingdom, available at http://surprise-pro
ject.eu/wp-content/uploads/2015/04/SurPRISE-D6.9-Country-report-United-Kingdom-v1.1.pdf.
52
Daniel Therrien, Journalistes surveillés: tous les citoyens sont à risque, La Presse, November
12, 2016, available at www.lapresse.ca/debats/votre-opinion/201611/10/01-5039924-journalist
es-surveilles-tous-les-citoyens-sont-a-risque.php (last accessed November 14, 2016); Tristan
Péloquin, Des outils pour déjouer la surveillance électronique, Applications La Presse, available
at http://techno.lapresse.ca/nouvelles/applications/201611/06/01-5038297-des-outils-pour-dejouer-
la-surveillance-electronique.php (last accessed November 16, 2016); Savage, Harsher Security
Tactics?, n. 51 above; Lee, Surveillance Self-Defense Against the Trump Administration, n. 51 above.
53
Schneier, Data and Goliath, n. 11 above; Glenn Greenwald, No Place to Hide: Edward
Snowden, the NSA, and the U.S. Surveillance State (1st edn 2014).
54
Mike Zajko, Telecom Responsibilization: Internet Governance, Surveillance, and New Roles
for Intermediaries, 41 Can. J. Commun. 75–93 (2016).

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harm to business. In the early months of the Snowden revelations, financial analysts
were already noting that sales of American networking products were in decline on
the international market and predicted that the American Cloud computing industry
would be dramatically affected.55 Researchers in Germany have shown more precisely
how, between 2013–2015, security breaches attributed to the NSA negatively impacted
the stock market values of affected firms.56 This pattern was also observed using other
methods.57 Research has also demonstrated a heightened use of privacy-oriented search
engines and anonymous web browsing tools, signifying a loss of revenue for online con-
tent providers whose services would have otherwise been used.58 As the advocacy group
Access Now explains,59 this may be the tip of the iceberg as state surveillance revelations
make carriers susceptible to legal action on the part of citizens and organizations seek-
ing remedy under the UN Guiding Principles on Business and Human Rights.60 The
case of multinational telecommunications provider TeliaSonera demonstrates a telling
example. TeliaSonera was shown to have collaborated in human rights abuses in the
Baltic region by providing network access to intelligence agencies. This resulted in both
independent and governmental investigations in Denmark and significant corporate
restructuring.61
3. TACTICS FOR SURVEILLANCE REFORM
The next section of this chapter presents five tactics for surveillance reform. Each has
proven successful to varying extents in different cases, and thus, depending on the unique
context of concern (e.g. surveillance reform at the local, national or global level) we
propose that reformers consider different tactical combinations. The tactics discussed
include: (1) digital mobilization against regulatory efforts to expand state surveillance; (2)
building a popular non-partisan movement; (3) advocating for repatriation of domestic
Internet traffic through network sovereignty efforts; (4) financial activism; and (5) the
design of an international policy standard.
55
Kashmir Hill, How the NSA Revelations are Hurting Businesses, Forbes, available at www.
forbes.com/sites/kashmirhill/2013/09/10/how-the-nsa-revelations-are-hurting-businesses/ (last acce
ssed November 16, 2016).
56
G Sinanaj et al., NSA Revelations of Privacy Breaches: Do Investors Care?, in Proceedings
of the 21st Americas Conference on Information Systems (2015).
57
Peter Micek and Jeff Landale, Forgotten Pillar: The Teleco Remedy Plan 6–7 (2013),
available at www.accessnow.org/cms/assets/uploads/archive/docs/Telco_Remedy_Plan.pdf.
58
Hampson and Jardine, Look Who’s Watching, n. 46 above, 84–88.
59
Micek and Landale, n. 57 above.
60
John Ruggie, Report of the Special Representative of the Secretary-General on the
Issue of Human Rights and Transnational Corporations and Other Business Enterprises 224
(2011), http://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/nethqur44&section=14
(last visited Nov 16, 2016).
61
Micek and Landale, Forgotten Pillar, n. 57 above, 11–12.

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Tactic One: Digital Mobilization Against Regulatory Efforts to Expand State

Surveillance
Case study: digital activism and the defeat of Bill C-30 in Canada
In February 2012, the Canadian government, led by then Prime Minister Stephen Harper,
introduced a ‘lawful access Bill’ into the Canadian House of Commons. Bill C-30 was
intended to enable the expansion of various surveillance, collection and decryption capa-
bilities of security and law enforcement entities in Canada. Provisions aimed to remove
impediments to various forms of digital search and seizure, with the goal of enhancing
and expanding the digital surveillance capabilities of the Canadian government. Elements
of the Bill included: (a) forcing telecommunication companies to install, at their own cost,
hardware and software to facilitate data flows to law enforcement; (b) access allowances
for real-time information gathering, including warrants for transmission data and preser-
vation orders forcing entities involved in collection to preserve data for later inspection; (c)
an enhanced capability to generate warrantless disclosures of the personal data of users;
and (d) a ‘gag order’ to counter Canadian privacy law, making it more difficult for carriers
to inform the public about the surveillance activities of the Federal government.62 A year
after introducing the Bill, in February 2013, the Canadian government removed C-30
from consideration. Canadian Justice Minister Rob Nicholson described the decision,
noting, ‘We will not be proceeding with Bill C-30’.63 He added that:
any attempts . . . to modernize the Criminal Code will not contain the measures contained in
C-30, including the warrantless mandatory disclosure of basic subscriber information or the
requirement for telecommunications service providers to build intercept capability within their
systems.64
When he was asked to offer a justification for the decision, Minister Nicholson sug-
gested that the strong opposition to the surveillance plans, as expressed by the Canadian
public, had considerable influence over the government’s decision, noting ‘We’ve listened
to the concerns of Canadians who have been very clear on this’.65
The finding that the general public, in this instance, was apparently able to affect plans
for enhancing and expanding the surveillance apparatus requires reflection and analysis.
While there are some issues addressed by government that are commonly debated in a
transparent fashion, decisions associated with national security and the surveillance appa-
ratus are often addressed in more secretive proceedings and far from processes associated
with democratic deliberation. The finding that the general public had something to say
about Bill C-30, and may have influenced the Canadian surveillance establishment, at
least in this instance, suggests that a democratically determined surveillance apparatus is
62
Parliament of Canada, House Government Bill – C-30, First Reading (41-1), available at
www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=5380965
63
L. Payton, Government Killing Online Surveillance Bill: Justice Minister Rob Nicholson Says
Controversial Bill C-30 Won’t Go Ahead, CBC News (2013), available at www.cbc.ca/m/touch/news/
story/1.1336384.
64
Ibid.
65
Ibid.

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a possibility, and that reform efforts should strive for similar outcomes. What remains is
to ask how Canadians were able to achieve this influence, especially since the Canadian
government did not call for public comment or hold public hearings about C-30 (sug-
gesting that the government was attempting to move forward with its expansions without
public involvement in the process).
Those that have studied the defeat of C-30 suggest that while a number of factors likely
contributed to the outcome, including some public relations blunders on the part of the
Federal government,66 it appears that the general public was able to express a clear mes-
sage of dissent via a digitally-mediated watchdog function.67, 68 This means that through
various forms of digital activism, some facilitated by activist groups, and some crowd-
sourced, members of the Canadian public were able to shift the direction of a surveillance
Bill being advanced by a Conservative Federal government in Canada.
Obar and Shade69 emphasize that three overarching digital activism strategies were
utilized to engage members of the general public and affect the C-30 outcome: (1) the
mobilization of a digitally-mediated community of individuals; (2) preparing digital
platforms to facilitate targeted user-generated content; and (3) creating anti-C-30 content
to be shared digitally.
(1) Mobilizing a digitally-mediated community of individuals As Obar and Shade note,70

even before Bill C-30 was introduced, a number of activist groups, academics and engaged
citizens were already speaking out against attempts by the Canadian government to
enhance and expand the surveillance apparatus in Canada. Around the time C-30 was
introduced, the group OpenMedia began mobilizing an online community to further the
fight for civil liberties. Beginning with their email list of more than 600,000 individuals,
OpenMedia launched the Stop Online Spying Campaign. The campaign connected
OpenMedia’s followers with an eventual coalition of 42 organizations that comprised
the official Stop Online Spying Coalition. Along with a variety of unofficial members
including academics, journalists, lawyers, media reformers and other individuals and
organizations, the coalition was able to engage in the fight against Bill C-30 through
various digital activism tactics, as discussed in the following sections.
(2) Preparing digital platforms to facilitate targeted user-generated content Once the
online community began to coalesce, various digital activism tactics were implemented to
raise awareness and express dissent about C-30.71 Online petitions were circulated, allow-
ing the contribution of user-generated content in the form of a petition signature. More
66
Online Surveillance Critics Accused of Supporting Child Porn, CBC News (2012), available
at www.cbc.ca/news/technology/story/2012/02/13/technology-lawful-access-toews-pornographers.
html.
67
Jonathan A. Obar and Leslie Regan Shade, Activating the Fifth Estate: Bill C-30 and
the Digitally-Mediated Public Watchdog, in Strategies for Media Reform: International
Perspectives (Des Freedman et al. eds., 2016).
68
E. Dubois and W.H. Dutton, The Fifth Estate in Internet Governance: Collective Accountability
of a Canadian Policy Initiative, 4 Revue Française D’études Américaines 81–97 (2013).
69
Obar and Shade, Activating the Fifth Estate, n. 67 above, 72.
70
Ibid.
71
Ibid.

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than 150,000 people signed OpenMedia’s petition. OpenMedia also developed a digital
form letter that made it easy for individuals to email their Member of Parliament about
C-30. The digital form letter could be accessed via the web, helped individuals identify
their government representative, and facilitated submission of an anti-C-30 form letter
to that representative.
Two tactics combining humour with dissent were also utilized to draw attention to the Bill
and to allow individuals to express concerns. The first was the ability, through OpenMedia,
to send then Public Safety Minister Vic Toews (part of the public face of the Bill) a valentine.
As the Bill was introduced around Valentine’s Day, this was a humorous and pointed way to
engage and dissent. On OpenMedia’s website they called individuals to action:
This month, send Hon. Vic Toews a Valentine informing him that you oppose the Online Spying
legislation. Follow the link, print out the Valentine, and send off your most intimate feelings
regarding the legislation. No postage required!72
The text of the Valentine’s card read:
Dear Minister Toews: I oppose mandatory Internet surveillance. This scheme is poorly thought
out, costly, and will leave my personal information less secure. Unchecked mass surveillance is a
breach of my fundamental right to privacy.73
One other tactic combining humour with dissent was a Twitter attack referred to as
#TellVicEverything. This particular strategy was not facilitated by OpenMedia, but
the viral nature of the hashtag was likely amplified by the coalition’s network. The idea
behind the hashtag was that contributors would both flood Minister Toew’s account
with messages, while also expressing public disdain for the government’s interest in mass
surveillance of even the mundane. Some of the tweets included:
Jason: Morning . . . I’ve showered, shaved, and made toast. The peanut butter was chunky . . .
Others were more pointed:
Steve: ‘Hey @ToewsVic I have 2 confess, I was a over speed-limit a bit on 404 today. U won’t tell
the @OPP_GTATraffic will you?
Kevin: ‘Hey @ToewsVic, I lost an email from my work account yesterday. Can I get your
copy?’74
Each of these tactics first involved the preparing of a digital platform to facilitate targeted
user-generated content, and then the crowdsourcing of content from both the Stop Online
Spying Coalition and the general public.
(3) Creating anti-C-30 content to be shared digitally Similar to the second strategy, Obar
and Shade emphasize75 that various forms of targeted digital content were created by the
72
Ibid. 48.
73
Ibid. 48–49.
74
Ibid. 48.
75
Ibid.

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coalition, journalists, activists and other individuals to be shared for the purpose of both
raising awareness and expressing dissent. For example, a number of academics in Toronto
produced a video entitled ‘(Un)Lawful Access: Experts Line Up Against Online Spying’,76
which was shared online and shown at various screenings. OpenMedia later produced
a number of pseudo-public service announcements presenting humorous-yet-critical
scenarios aimed to highlight the surveillance scenarios that could become normalized
with the power granted by Bill C-30. The videos typically involved an individual engag-
ing in something that could be considered private – opening a letter or speaking on the
telephone – followed by what looked like a police officer spying on the activity. A caption
would then appear saying ‘You wouldn’t let a police officer do this without a warrant . . .
So why should your online communication be any different?’.77
Digital art, sometimes in the form of memes, and other times in the form of political
cartoons were also created and shared, often by individuals that were not directly associ-
ated with the coalition.78 For example, an image of Vic Toews published in 2012 in the
Edmonton Journal, being attacked by Twitter birds, analogizing Hitchcockian horror
associated with public dissent in the form of a Twitter attack was published online and
shared.
Another Twitter attack, referred to as ‘Vikileaks’, combined the use of Twitter with the
strategy of creating content to be shared, namely the Vikileaks story. After the Bill was
introduced, the Twitter account @vikileaks30 was created with the description ‘Vic wants
to know about you. Let’s get to know Vic’.79 The account then tweeted out a variety of
embarrassing personal details about the Minister, including details about his divorce, an
alleged affair with a babysitter and how much he spent at restaurants. This tactic, employ-
ing an aggressive message combining irony and dissent, revealed to be the act of a Liberal
Party staff member (who eventually resigned), drew considerable attention from the
Canadian media, which also served to draw attention to the deliberations over Bill C-30.
When Canada’s then Conservative government, led by Prime Minister Stephen
Harper decided to remove Bill C-30 from consideration, Canadian Justice Minister
Rob Nicholson famously noted, ‘We’ve listened to the concerns of Canadians who have
been very clear on this’.80 Indeed, the digital activism efforts, led by OpenMedia’s Stop
Online Spying Coalition and enhanced by the efforts of a digitally-mediated community,
demonstrate that tactics capable of spreading awareness and dissent online can contribute
to policy influence and policy outcomes, even when a government is involved in secretive
efforts to advance forms of state surveillance.
Tactic Two: Building a Popular Non-Partisan Movement
Case study: constructing and mobilizing for the human right to water in Uruguay
Environmental movements have succeeded in developing and implementing a multiplicity
of tactics for advancing their causes through both legal and commercial avenues. The
76
See www.unlawfulaccess.net/.
77
See e.g., www.youtube.com/watch?v=QwqIYHwRcxY.
78
Obar and Shade, Activating the Fifth Estate, n. 67 above.
79
Ibid. 52.
80
Payton, Government Killing Online Surveillance Bill, n. 63 above.

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successful campaign to make access to potable water and to sewage and sanitation services
a human right in Uruguay is one which serves as an example for other movements around
the world. An important tool that emerged from this campaign and its international
context is the concept of the human right to water. Campaign organizers successfully
reconceptualized a common thing central to human existence – water – as a human right
in need of a political apparatus. They did so in a way that crossed political and economic
boundaries, challenges that are important to address in organizing a successful surveil-
lance reform movement.
An integral part of the way we live, water (like privacy) ‘is indispensable stuff for
human bodies, but also for the social fabric’.81 It is also the focus of complicated sets
of power relations that ultimately decide, in part, what sort of environment we live
in.82 In Uruguay, water has long been culturally regarded as a common good, a status
attributed to the creation of the federal water company Obras Sanitarias del Estado
(OSE) in 1952.83 By the later part of the twentieth century, this centralized state
enterprise had succeeded in extending water infrastructure to more than 95 per cent
of the population and sewage services to between 50–60 per cent. Given this high rate
of accessible clean water, ‘the general population considered that Uruguay had no
water problems. It was a naturally (common) good, accessible, well organized and well
administered’.84 Thus, access to clean drinking water was taken for granted. In 1992,
Uruguay encountered the wave of neoliberal policies then sweeping Latin America
and an attempt was made to privatize most state services. A plebiscite managed to
counteract this, making Uruguay ‘the only country in the world that was consulted
on full-scale privatization and which has rejected the possibility by referendum’.85
Discussions on the privatization of the water system proceeded and in the late 1990s
water services were privatized in a small area and sold to French multinational Suez
Lyonnaise.86 Public workers attempted to resist privatization but were unable to design
an argument that transcended their rights as unionized workers and their efforts
failed.87 A further concession was made in 2000, effectively granting a 30-year contract
for water services in the department of Maldonado to Spanish multinational Aguas de
Bilbao Vizcaya.88
81
E. Swyngedouw, Social Power and the Urbanization of Water: Flows of Power 1
(2004).
82
Ibid. 23.
83
Semi-structured Interview with Marcel Achkar, Professor of Geography, Universidad de la
República del Uruguay, Montevideo, Uruguay, 2010; Semi-structured Interview with Martín Ponce
de León, President of Obras Sanitarias del Estado (Uruguay), Director of Antel (Uruguay), 2010;
Javier Taks, ‘El Agua es de Todos/Water for All’: Water Resources and Development in Uruguay, 51
Development 17–22, at 18 (2008).
84
Interview with Achkar, n. 83 above.
85
The New Latin American Left 101 (Patrick Barrett, Daniel Chavez and César Rodriguez-
Garavito eds., 2008).
86
Carlos Santos and Alberto Villareal, Uruguay: Direct Democracy in Defence of the Right to
Water, in Reclaiming Public Water 173–79, at 173–74 (2005).
87
88
Semi-structured Interview with Adriana Marquisio, Member of Executive Committee,
Funcionarios de Obras Sanitarias del Estado, Uruguay, 2010.

WAGNER_9781785367717_t.indd 208 13/12/2018 15:25

In 2001, the government signed a letter of intent with the International Monetary
Fund which further advanced the proposition of extending water and sewage privatiza-
tion to other regions of the country.89 The following year, privatization of water services
became a growing topic of debate in various sectors of Uruguayan society as the sale of
the Guaraní aquifer was proposed and private water prices rose, in some cases, by 1000
per cent.90 That same year, actors from the water company union (FFOSE) and various
social organizations began to organize, ultimately creating the Comisión Nacional en
Defensa del Agua y de la Vida (the CNDAV or National Committee for the Defense of
Water and Life).91
The water movement in Uruguay was one of several developing in Latin America,
initially with no coordination between them. Through the World Social Forum in Brazil,
members of different water movements came to understand that their governments were
using similar privatization tactics and developing similar legislation.92 Such coordination
by governments would suggest that similar coordination could be undertaken by civil
society groups opposing privatization. The result was a development of discursive and
political tactics at the international level and the subsequent reformulation and application
of these tools according to the unique characteristics of individual countries. The most
important tool to emerge from the international space was the notion of the human right
to water. At the heart of the proposition is an interpretation of the 1976 United Nations
International Covenant on Economic, Social and Cultural Rights93 by the United Nations
Committee on Economic, Social and Cultural Rights, known as General Comment 15.
A non-binding interpretation of the Covenant, General Comment 15 lays out numerous
legal arguments articulating that the human right to water exists according to both the
Covenant and various other human rights declarations and treaties.94 With this weighty
tool in hand, local movements were able to initiate conversations at the grassroots level.
The International Principles on the Application of Human Rights to Communications
Surveillance, explored in Tactic Five below, could serve as a similar international starting
point for nationally-focused surveillance reform.
The members of the CNDAV were already involved in activism around water rights.
Learning from the earlier failure of unionized workers to involve a broader public, an
invitation was sent to all political sectors, social movements and social organizations
in the country.95 The coalition embarked on a campaign that aimed to cut through
89
Ibid.; Santos and Villareal, Uruguay: Direct Democracy, n. 86 above,173–74.
90
91
Ibid.; Interview with Marquisio, n. 88 above; Exploratory Interview with Maria Selva Ortiz
on Uruguayan Water Movement, 2009.
92
Interview with Marquisio, n. 88 above.
93
La Iniciativa MERCOSUR, Agua: Construcción Social de un Derecho Humano 5–6
(2007); Office of the United Nations High Commission for Human Rights, International Covenant
on Civil and Political Rights (1976).
94
La Iniciativa MERCOSUR, Agua, n. 93 above, 6; United Nations, Economic and Social
Council, Committee on Economic, Social and Cultural Rights, Substantive Issues Arising in the
Implementation of the International Covenant on Economic, Social and Cultural Rights, General
Comment No. 15: The Right to Water (Arts. 11 and 12 of the International Covenant on Economic,
Social and Cultural Rights) (2002).
95

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partisan politics and to create a multiplicity of spaces for debate and popular education.
The ultimate goal was to collect 250,000 signatures in order to hold a plebiscite on a
constitutional amendment creating the human right to water provided for by the state.
The question would be asked at the polls during the October 2004 election. A significant
organizational strength was that there was at least one member of the FFOSE union in
every city, town and village in the country. Tactics were diverse and creative. Teachers
opened up their classrooms to organizers and campaigns were built up around World
Water Day and Earth Day. One group of activists ‘rode on horseback for 23 days through
the middle of the countryside’ to spread the word to remote communities. They held
plenaries in town squares, workshops in the streets and at the weekly outdoor markets,
and went door-to-door.96 A final step in the campaign was to create ‘Casas del Agua’ or
‘Water Houses’ whereby individuals offered their homes as neighbourhood organizational
centres for distributing information and working with the national coalition. Each Casa
del Agua was autonomous and able to take ownership of its own campaign. Members of
the public thus gained ownership of the campaign and came to understand its ultimate
goal: guaranteeing the human right to water by guaranteeing popular ownership of
political and regulatory processes.97 Ultimately, 300,000 signatures were collected98 and
65 per cent of the population voted in favour. The right to water and sanitation services
is now article 47 of Uruguay’s Constitution.99
The process of recognizing water as a human right created a number of new political
spaces. During the campaign, spaces emerged where this idea was debated, strengthened
and rebuilt in the local context. Following the plebiscite, spaces emerged that were
designed to regulate and ensure continuous public participation in water governance. The
plebiscite created the National Directorate of Water and Sewage (DINASA, now called
DINAGUA) and planted the seeds of another body – the Assessorial Commission on
Water and Sewage (COASAS). DINAGUA is the federal body charged with overseeing
the use of water policy, water resources and sewage infrastructure in Uruguay.100 Following
the plebiscite, law-makers and civil society groups spent five years collaboratively develop-
ing new environmental legislation, which includes the national water policy.101 Adopted
unanimously by all political parties, the law created COASAS, which provides an official
venue through which civil society can ostensibly take part in the oversight, design and
implementation of water policy.
The Uruguayan water movement was successful because traditional barriers were
broken down. In their place, the movement built organizational and ideological links
based on ‘solidarity, the free exchange of ideas, reciprocity, and non-monetary value’.102
96
Interview with Marquisio, n. 88 above; Semi-structured Interview with Maria Selva Ortiz,
Comision Nacional para el derecho a agua y vida, 2010.
97
Interview with Achkar, n. 83 above; Interview with Ortiz, n. 96 above.
98
99
Parlamento del Uruguay, Constitución de la República del Uruguay (2004), available at
https://parlamento.gub.uy/documentosyleyes/constitucion.
100
Semi-structured Interview with José Luis Genta, Director of Direccion Nacional de Aguas
y Saneamiento, 2010.
101
102

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Water, like privacy, previously taken for granted, had become something of profound
social and cultural value upon which all individuals depended no matter their vocation,
economic status or political stripe. The ability to preserve water as a common good is
directly linked to the ability of Uruguayan society – the community – to exercise owner-
ship of the political spaces, institutions and processes connected to it. Reform was a
collaborative process between the public, civil society and Members of Parliament and
occurred on a human scale. Facilitating processes where these sets of actors can collabo-
rate as co-citizens is an important tactic for building a surveillance reform movement that
aims to have long-term effects.
The water movement provides a number of tactics that are appropriate for application
in surveillance reform at the domestic level: simultaneously making use of international
human rights frameworks; working with similar movements in other countries; engaging
in grassroots activism at the local level; and appealing to all members of society. The
Uruguayan example was the first success for an international movement that has contin-
ued to develop in countries around the world.103
Tactic Three: Advocating for Repatriation of Domestic Internet Traffic Through Network
Sovereignty Efforts
In 2006, one-time AT&T technician Mark Klein revealed that AT&T had allowed the US
National Security Agency (NSA) to install splitter technology in its switching centre at
611 Folsom Street in San Francisco.104 As presented in Figure 11.1, the splitter technology
had the ability to mirror all Internet traffic passing through the centre.
NSA whistle-blower Edward Snowden later expanded on Klein’s revelation, highlight-
ing that the splitter operation was a part of the NSA’s ‘upstream’ signals intelligence
strategy (see Figure 11.2). Snowden’s revelations, coupled with suggestions from academic
scholarship, suggest that it is likely that the NSA has the ability to collect components of
all Internet transmissions that cross into US jurisdiction.105
Why should this form of signals-intelligence surveillance matter to Canadians? Among
the Snowden revelations was the suggestion, from a top-secret NSA Powerpoint slide
that ‘much of the world’s communication flows through the US’ and that ‘your target’s
communication could easily be flowing into and through the US’ (see Figure 11.3).
Political economic relationships developed between Internet carriers, coupled with
the extent of American Internet infrastructure, likely contributes to the reality that
Internet traffic from other countries often enters US jurisdiction. It should come as no
surprise that accessing an American Internet service from Canada results in packets
entering the United States, passing through US Internet exchange points (IXPs), and
other infrastructure. This could potentially subject Canadian online behaviours to US
103
Right to Water, The Rights to Water and Sanitation at the National Level, Rights to Water and
Sanitation, available at www.righttowater.info/why-the-right-to-water-and-sanitation/the-rights-to-
water-and-sanitation-at-the-national-level/ (last accessed November 25, 2016).
104
M. Klein, Wiring up the Big Brother Machine . . . and Fighting It (Charleston, SC:
BookSurge Publishing, 2009).
105
A. Clement, Ixmaps: Tracking Your Personal Data Through the NSA’s Warrantless
Wiretapping Sites, in Proceedings of the IEEE – ISTAS Conference (2013).

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Intercepting Communications at
AT&T Folsom Street Facility
Millions of communications from

ordinary Americans (AT&T customers)
A
B
C
AT&T Facility
D 611 Folsom Street San Francisco
NSA-controlled
Room (641A)
A B C D
Splitter Government
A
B Secret
C Network
D
Millions of communications from

ordinary Americans
Source: EFF. Creative Commons Attribution License (CC BY 3.0 US).
Figure 11.1 NSA Splitter Operation Visualization from 611 Folsom Street
surveillance. Not as obvious, however, is that considerable domestic Canadian Internet

communication also crosses the border due to a process known as ‘boomerang routing’ (or
‘tromboning’). Boomerang routing occurs when a packet’s path originates and terminates
in the same country (i.e. Canada), but along the way, the packet transits another country
(i.e. the United States) before arriving at its destination.106 Research by the IXmaps
106
Obar and Clement, Internet Surveillance and Boomerang Routing, n. 17 above; Andrew
Clement and Jonathan A. Obar, Canadian Internet ‘Boomerang’ Traffic and Mass NSA Surveillance:

WAGNER_9781785367717_t.indd 212 13/12/2018 15:25

Source: Snowden Digital Surveillance Archive, https://snowdenarchive.cjfe.org.
Figure 11.2 Snowden NSA Upstream and PRISM Slide
team in Toronto107 suggests that approximately 22–25 per cent of all Canadian domestic
Internet transmissions may boomerang through the United States.108 The IXmaps project
has identified boomerang transmissions associated with Canadian government services,
Canadian banks, Canadian cultural institutions and a variety of other organizations and
services, suggesting that each of these could be subject to NSA surveillance.
Boomerang routing raises network and data sovereignty concerns. In the context of
nation-states, network sovereignty is ‘the authoritative quality or process whereby an
entity (such as the state) or set of entities distinguishes the boundaries of a network and
then exercises a sovereign will or control within those boundaries’.109 Similarly, data
sovereignty refers to the coupling of data control and national sovereignty,110 meaning
Responding to Privacy and Network Sovereignty Challenges, in Law, Privacy and Surveillance in
Canada in the Post-Snowden Era (Michael Geist ed., Ottawa, ON: University of Ottawa Press,
2015).
107
See IXmaps website, www.ixmaps.ca/.
108
See n. 106 above.
109
Obar and Clement, Internet Surveillance and Boomerang Routing, n. 17 above.
110
Z.N. Peterson, M. Gondree and R. Beverly, A Position Paper on Data Sovereignty:
The Importance of Geolocating Data in the Cloud (HotCloud, 2011).

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Source: Snowden Digital Surveillance Archive, https://snowdenarchive.cjfe.org.
Figure 11.3 Snowden NSA ‘Monitoring a Target’s Communication’ Slide
that data created, used and/or housed within specific geographic boundaries would be
subject to the sovereign will of the entity that sets those boundaries. Indeed, Canadian
network sovereignty means that Canadians have the ability to control and contain the
transmissions over their network infrastructure, and Canadian data sovereignty means
that Canadians have the ability to control and contain the data created, used, modified
and stored by and for Canadians within Canadian geographic borders.
Any instance where Canadian Internet traffic crosses into the United States is subject
to the surveillance provisions of American law. Beyond the network and data sovereignty
concerns associated with the US monitoring of Canadian domestic communications – a
process generally invisible – a Canadian’s ability to raise privacy and other civil liberties
objections in this context is severely limited due to what Austin refers to as a ‘Constitutional
black hole’.111 In the United States, the courts have determined that Canadians are not
protected by the Fourth Amendment of the US Constitution, as ‘the Fourth Amendment
111
L.M. Austin, Technological Tattletales and Constitutional Black Holes: Communications
Intermediaries and Constitutional Constraints, 17(2) Theoretical Inquiries in Law 451–85
(2016).

WAGNER_9781785367717_t.indd 214 13/12/2018 15:25

does not apply to nonresident aliens’.112 At the same time, the Supreme Court of Canada
has determined that:
the Charter [i.e. the Canadian Constitution] has no application to a search or seizure undertaken
in a foreign territory, has no application to a Canadian request that foreign authorities initiate a
search in a foreign territory, and most likely will not trigger a Charter remedy at trial if a search
or seizure undertaken in a foreign territory is not Charter compliant.113
These threats provide the latest iteration of long-standing concerns over the sovereignty
of Canada’s ICT infrastructure, services and products. Indeed, the aforementioned poten-
tial for US surveillance of Canadian networks and data suggests that both Canadian
network and data sovereignty are being threatened by boomerang routing and as a result,
so too are the civil liberties of the users involved.
Promoting repatriation of Canadian domestic Internet traffic to reduce the US

surveillance threat
To promote repatriation of Canadian domestic Internet traffic and reduce the surveil-
lance threat from our neighbours to the south, at least two issues must be addressed: (1)
the infrastructure challenges that contribute to international routing; and (2) the political
economic relationships developed between Internet carriers.
The Canadian government can contribute to the repatriation of domestic Internet
traffic by investing in Internet infrastructure in Canada. One clear area for improvement is
the development of additional Canadian Internet exchange points (IXPs). The numerous
organizations that facilitate Internet transmissions often connect to each other at various
IXPs along the geographic path between sender and receiver. One of the contributors
to boomerang traffic is the large number of IXPs in the United States, compared with
Canada. As of February 2018, Canada has ten IXPs, while the United States has 88.114
Due to congestion as well as political economic concerns, the lack of IXPs in Canada,
compared to the relative abundance in the United States, increases the likelihood of inter-
national routing, even for domestic traffic. The Canadian Internet Registry Authority
(CIRA) argues that investing in the development of additional IXPs in Canada would
address this issue, noting:
Canadian Internet access is heavily and unnecessarily dependent upon foreign infrastructure,
especially US infrastructure . . . The provision of additional IXPs in Canada would address a
long-standing failure of coordination among Canadian networks. By all indications, Canada’s
dearth of IXPs results in large part from Canada’s proximity to the United States, where IXPs
are widespread.115
112
Ibid. 22.
113
Ibid. 474.
114
Internet Exchange Point Growth, Packet Clearing House (2013), available at https://prefix.
pch.net/applications/ixpdir/summary/growth/.
115
B. Woodcock and B. Edelman, Toward Efficiencies in Canadian Internet Traffic
Exchange 1, 4 (Canadian Internet Registration Authority, September 2012) available at https://
cira.ca/sites/default/files/attachments/publications/toward-efficiencies-in-canadian-internet-traffic-
exchange.pdf.

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CIRA’s president, Byron Holland, added:
There is one way to protect ourselves, to some degree, from having our data fall under the juris-
diction of a foreign country. We must ensure more of it travels to its destination via Canadian
routes . . . By building a robust Canadian Internet infrastructure, including a nation-wide fabric
of IXPs, we can ensure more Canadian traffic stays in Canada, and is therefore only subject to
Canadian law.116
Investment in IXPs is not enough. Political economic relationships developed between

carriers determine the extent to which peering takes place at IXPs, and at which IXPs. As
noted by CIRA:
An individual Canadian network may find it easier to connect to an IXP in the United States,
or simply to buy transit, than to coordinate with its competitors to form additional IXPs in
Canada.117
The statement that Canada-United States connections are easier to develop than Canada-
Canada connections, suggests that among the reasons for these connections are financial
incentives to connect internationally, as opposed to domestically. This is curious, as CIRA
suggests that Canada-Canada transmissions should be less expensive.118 While it is likely
that congestion concerns complicate this comparison, the likelihood, as CIRA notes,
that large Canadian carriers would prefer to develop relationships with American as
opposed to Canadian counterparts suggests that the reasons for boomerang routing are
more complicated than the congestion argument assumes. What furthers this argument is
the lack of peering connections between Canadian carriers at Canadian IXPs, evidenced
by the peering lists on various IXP websites and materials presented in carrier privacy
policies.119 This suggests that Canadian infrastructure is not being fully utilized, and as a
result, congestion concerns might be overstated.
Therefore, to address the surveillance threat imposed by boomerang routing,120 in
addition to investment in Canadian Internet infrastructure, the Canadian government
must address the political economic relationships that contribute to boomerang routing,
discouraging Canada-United States connections where Canada-Canada connections are
possible. Encouraging carriers to peer at Canadian IXPs would ensure that the infrastruc-
ture that exists is fully utilized, which would also push the government to pursue further
infrastructure expansion.
116
B. Holland, PRISM, Internet Exchange Points and Canada, Public Domain (Blog), June 24,
2013, http://blog.cira.ca/2013/06/prism-internet-exchange-points-and-canada/.
117
Woodcock and Edelman, Toward Efficiencies in Canadian Internet Traffic
Exchange, n. 115 above.
118
Ibid.
119
Andrew Clement and Jonathan A. Obar, Keeping Internet Users in the Know or in the Dark:
An Analysis of the Data Privacy Transparency of Canadian Internet Carriers, 6(1) J. Information
Policy 294–331 (2016); Andrew Clement and Jonathan A. Obar, Keeping Internet Users in the
Know or in the Dark: Data Privacy Transparency of Canadian Internet Service Providers
(2013), available at www.ixmaps.ca/transparency/2013-report.php; Jonathan A. Obar and Andrew
Clement, Keeping Internet Users in the Know or in the Dark: Data Privacy Transparency of
Canadian Internet Carriers (2017), available at www.ixmaps.ca/transparency.php.
120
See n. 106 above.

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Tactic Four: Financial Activism
Tactics for promoting surveillance reform often rely on judicial avenues to pressure gov-
ernment to abide by recognized norms respecting the human right to privacy.121 However,
numerous examples demonstrate government to be in conflict of interest when it comes to
being both the guarantor of this right and the regulator of infrastructure providers who
have been, purposefully or not, enablers of state mass surveillance. Edward Snowden’s
2013 revelations of mass surveillance documented how and to what extent the National
Security Agency (NSA) in the United States has infiltrated servers at Google, Microsoft,
Yahoo, Apple and a host of other trusted communications providers.122 In response,
many of these companies have become outspoken privacy advocates, with Apple notably
fighting a very public court battle in 2016 around being forced to access the locked iPhone
of a mass murderer.123 Privacy has become good for business, yet to date it is only service
providers, rather than infrastructure providers, that have been forced to reckon with the
power of concerned consumers. Amongst other revelations contained in Snowden’s docu-
ments are details of how the NSA and GCHQ conduct mass surveillance on the digital
data flowing over telecommunications infrastructure, with and without the cooperation
of infrastructure providers. For example, the United Kingdom’s Channel 4 has, with
the help of these documents, shown how Vodafone collaborated with GCHQ to provide
access to an estimated 85 per cent of digital communications traffic transiting through
the United Kingdom.124 Investigative reporting has also shown how AT&T and Verizon,
the two largest telecommunications providers in the United States, were active partners
in mass surveillance in and outside of the United States.125 Addressing such a situation,
where the state is able to force its mass surveillance imperative onto telecommunications
providers, demands new and creative reform strategies. While other chapters in this
volume deal with technological tools for safeguarding human rights, proposed here is
the beginning of a strategy for introducing reforms from within the corporate realm and,
thus, attempting to create new political spaces outside the immediate purview of the state.
If you are reading this, there is a high chance that you, as an academic researcher,
government employee or other sort of labourer, are indirectly linked (financially) to
121
Colin J. Bennett, The Privacy Advocates: Resisting the Spread of Surveillance (2008).
122
Barton Gellman and Laura Poitras, U.S., British Intelligence Mining Data from Nine
U.S. Internet Companies in Broad Secret Program, Washington Post, June 7, 2013, available
at www.washingtonpost.com/investigations/us-intelligence-mining-data-from-nine-us-internet-
companies-in-broad-secret-program/2013/06/06/3a0c0da8-cebf-11e2-8845-d970ccb04497_story.
html (last accessed November 25, 2016).
123
Laura Hautala, The Snowden Effect: Privacy is Good for Business, CNET, June 3, 2016,
available at www.cnet.com/news/the-snowden-effect-privacy-is-good-for-business-nsa-data-collec
tion/ (last accessed November 25, 2016).
124
Geoff White, Spy Cable Revealed: How Telecoms Firm Worked with GCHQ, Channel 4
News, November 20, 2014, available at www.channel4.com/news/spy-cable-revealed-how-telecoms-
firm-worked-with-gchq (last accessed November 25, 2016).
125
Julia Angwin Poitras, Charlie Savage, Jeff Larson, Henrik Moltke, Laura and James Risen,
AT&T Helped U.S. Spy on Internet on a Vast Scale, New York Times, August 15, 2015, available at
www.nytimes.com/2015/08/16/us/politics/att-helped-nsa-spy-on-an-array-of-internet-traffic.html

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one or many telecommunications providers. This often occurs through investments

made either by one’s pension fund or one’s employer. For example, the Universities
Superannuation Scheme (USS) is a pension fund for all higher education educators in
the United Kingdom. In 2017, the fund held ₤275.01 million of shares in Vodafone.126
Maintaining such a direct investment enables direct engagement by the investor in the
activities of the corporation, a practice called shareholder activism. A tool for chal-
lenging state mass surveillance, it is a tactic in its infancy but one successful example is
worth noting. In 2013, the American Civil Liberties Union (ACLU) Northern California
collaborated with the New York State Common Retirement Fund and Trillium Asset
Management LLC, filing a shareholder proposal demanding that AT&T and Verizon
both begin to issue transparency reports detailing the number of times that government
bodies have requested personal information concerning customers.127 Both companies
have issued such reports.
Further, the Principles for Responsible Investment (PRI) is a UN-hosted set of
investor principles aimed at integrating environmental, social and governance issues
into investment decisions. In November 2016, it counted close to 1,500 signatories, from
over 50 countries, representing over US$60 trillion.128 This is a three-fold increase since
2010, demonstrating a significant entrenchment of socially responsible investment as
an ideal practice.129 As suggested throughout this chapter, the safeguard of the human
right to privacy is an important social and governance issue with serious impacts on the
industries that facilitate digital communication, be they related to commerce or simple
communication. The rise of the PRI has been accompanied by an equal rise in shareholder
activism activities.130 Shareholder activism, either undertaken through large institutional
investors such as the USS or in the small-scale financial-hacking models of the Robin
Hood Asset Management Cooperative131 (playing the market to fund social movements)
and Rolling Jubilee132 (playing the debt market for the purpose of forgiving educational or
healthcare-related debt), is a tactic that could be used to bring about greater transparency
on the part of telecommunications providers with regard to their relationships with state
mass surveillance.
126
Universities Superannuation Scheme Ltd, Universities Superannuation Scheme,
Report & Accounts for the Year Ended 31 March 2017 (2017).
127
Abdi Soltani, NSA and Phone Companies: Can You Hear Us Now? (ACLU of Northern
California, 2013), available at www.aclunc.org/blog/nsa-and-phone-companies-can-you-hear-us-
now (last accessed August 28, 2015).
128
UNPRI, About the PRI, Principles for Responsible Investment, www.unpri.org/about (last
129
Nathan Cummings Foundation, Changing Corporate Behavior thru Shareholder
Activism 3–4 (2010), available at www.nathancummings.org/sites/default/files/Changning%20
Corporate%20Behavior%20thru%20Shareholder%20Activism.pdf (last accessed September 4,
2015).
130
Arthur F. Golden, Shareholder Activism & Engagement, 2016 Harvard Law School
Forum on Corporate Governance and Financial Regulation (2016), available at https://cor
pgov.law.harvard.edu/2016/03/14/shareholder-activism-engagement-2016/ (last accessed November
25, 2016).
131
Robin Hood Asset Management Cooperative, About – Robin Hood Coop Robin Hood Coop,
http://robinhoodcoop.org/ (last accessed November 25, 2016).
132
Rolling Jubilee, http://rollingjubilee.org (last accessed November 25, 2016).

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Tactic Five: Design of an International Policy Standard
The International Principles on the Application of Human Rights to Communications

Surveillance133 were developed between 2012–2014 by an international group of non-
governmental organizations, security and privacy experts. They have been endorsed by
over 400 civil society organizations, over 300,000 individuals and parliamentarians in
Canada, Germany and France. These Principles, along with their accompanying back-
ground and international legal analysis134 and implementation guide, constitute a holistic
set of tools and guidelines for state mass surveillance reform. State surveillance suffers
from a profound lack of transparency, accountability and oversight.135 These Principles,
if used in the course of law-making and public participation in legislative and judicial
processes, provide hope of remedy. The implementation guide, in particular, responds to
recognition by the United Nations of the importance of this project and its potential.136
In our experience as researchers and policy advocates, we have witnessed a thirst on the
part of law-makers for expert information on which to base their legislative design. The
13 Principles are: legality; legitimate aim; necessity; adequacy; proportionality; compe-
tent judicial authority; due process; user notification; transparency; public oversight;
integrity of communications and systems; safeguards for international cooperation;
and safeguards against illegitimate access. These Principles need to be deployed into the
hands of law-makers by the people they represent and academic researchers can play
an important role in doing so. In our experience as researchers and policy advocates,
we have witnessed a thirst on the part of law-makers for expert information on which
to base their legislative design.137 In November 2016, Dr. Light invited the Canadian
House of Commons Standing Committee on Public Safety and National Security to
collaborate on a long-term public consultation on Canada’s surveillance laws and to
organize an event for sharing expert knowledge with the committee.138 Such a collabora-
tive approach, directed by The International Principles on the Application of Human
Rights to Communications Surveillance may suggest an additional tactic for advancing
surveillance reform efforts.
133
Access et al., Necessary and Proportionate, n. 5 above.
134
Electronic Frontier Foundation and Article 19, Background and Supporting
International Legal Analysis for the International Principles on the Application of Human
Rights to Communications Surveillance (2014); Access, Universal Implementation Guide
for the International Principles on the Application of Human Rights to Communications
Surveillance (2015), available at www.accessnow.org/page/-/docs/Implementation_guide_-_
July_10_print.pdf (last accessed September 1, 2015).
135
Simon Davies, A Crisis of Accountability: A Global Analysis of the Impact of the
Snowden revelations (2014).
136
Access, Universal Implementation Guide, n. 134 above, 4–5; United Nations Office
of the High Commissioner for Human Rights and Office of the High Commissioner and the
Secretary-General, The Right to Privacy in the Digital Age (2014).
137
Based on Evan Light’s experience interviewing law-makers and, most recently, on his
testimony to the House of Commons Standing Committee on Public Safety and National Security
in Toronto, Canada, October 19, 2016.
138
See further http://www.glendon.yorku.ca/communications.

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4. CONCLUSION: REFLECTING ON THE CANADIAN

EXAMPLE
As Canada is well positioned to take meaningful steps towards surveillance reform, some
concluding reflections are worthwhile. A primary concern for reformers – one that can be
seen throughout each of the five tactics explored in this chapter – is the ability to maintain
public awareness of the issue at hand. One of the reasons Canada is well-positioned for
reform is that critical analyses of surveillance tools, tactics and scandals regularly appear
in Canadian media. This means that reformers at civil society organizations benefit
from a more engaged audience that is already somewhat familiar with the issues. While
media reports concerning Canadian connections to the Snowden revelations have tapered
off,139 a number of recent events have served to maintain the presence of surveillance in
the public domain and draw particular public attention to surveillance harms. In 2016,
journalists in Quebec discovered they had been monitored for several years by multiple
police forces (see section 2 above). Also in 2016, a Canadian Federal Court ruled that the
Canadian Security Intelligence Service (CSIS) improperly retained surveillance metadata
for ten years when it had not been granted judicial authority to do so.140 Only months
later, in April 2017, Canada’s national broadcaster, the CBC, broke a story detailing
the use of IMSI catcher cellphone surveillance devices in Ottawa.141 This has been fol-
lowed142 by a series of journalistic investigations concerning the use of IMSI catchers143
by police forces across the country.144 Additional attention has been lent to the issue by
the federal government’s introduction of a revised anti-terrorism Bill, C-59 which, among
other things, would grant new expansive powers to Canada’s intelligence agencies while
omitting the introduction of substantive oversight mechanisms.145 Canadian civil society
organizations have capitalized on the public visibility of surveillance issues in Canada,
tailored tactics accordingly, and enhanced opportunities for reform outcomes.
139
Snowden Digital Surveillance Archive, https://snowdenarchive.cjfe.org (last accessed March
2, 2018).
140
Jim Bronskill, CSIS Broke Law by Keeping Sensitive Metadata, Federal Court Rules, CBC
News, November 3, 2016, available at www.cbc.ca/news/politics/csis-metadata-ruling-1.3835472
(last accessed March 2, 2018).
141
Catherine Cullen, Brigitte Bureau, Someone is Spying on Cellphones in the Nation’s
Capital, CBC News, April 3, 2017, available at www.cbc.ca/news/politics/imsi-cellphones-spying-
ottawa-1.4050049 (last accessed March 2, 2018).
142
Yvette Brend, Vancouver Police Admit Using StingRay Cellphone Surveillance, BCCLA
Says, CBC News, August 9, 2016, available at www.cbc.ca/news/canada/british-columbia/vancou
ver-police-stingray-use-cellphone-tracking-civil-liberties-1.3713042 (last accessed March 2, 2018).
143
Matthew Braga, Spies More Free to Use Cellphone Surveillance Tech Without Warrant,
Under Court Ruling, CBC News, November 28, 2017, available at www.cbc.ca/news/technology/
csis-court-stingray-imsi-catchers-1.4423871 (last accessed March 2, 2018).
144
Cristina Howorun, Toronto Police Refuse to Acknowledge Use of Stingray Surveillance
Devices, CityNews, September 14, 2017, available at http://toronto.citynews.ca/2017/09/13/toronto-
police-refused-acknowledge-use-stingray-surveillance-devices/ (last accessed March 2, 2018).
145
Christopher Parsons, Lex Gill, Tamir Israel, Bill Robinson and Ronald Deibert,
Analysis of the Communications Security Establishment Act and Related Provisions in Bill
C-59 (An Act Respecting National Security Matters), First Reading (December 18, 2017)
(The Citizen Lab, CIPPIC, 2017).

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The Canadian example also reveals that sustained digital mobilization by civil society
actors can not only contribute to grassroots policy influence, but opportunities for direct
intervention. As explored above, Canadian civil society organizations have developed
an expertise for grassroots organizing, which includes explaining complex issues to the
general public, mobilizing a community of reformers, and translating this action into
policy effects. Most recently, similar to the organizing around Bill C-30, OpenMedia
has organized an online campaign opposed to C-59 asking that the Federal government
‘address dangerous new powers being proposed for (Canadian Security Establishment
Canada)’.146 This sustained digital presence has arguably advanced OpenMedia’s posi-
tioning within the ongoing state surveillance debate in Canada. Since their actions in
2012, OpenMedia’s influence has grown to the extent that it was invited to appear before
the House of Commons Standing Committee on Public Safety and National Security.147
Whereas previously, OpenMedia’s reform efforts mobilized massive public dissent outside
formal governmental process,148 the organization is now offered a seat at the policy table.
Canadian actors are also actively engaged (to an extent) in the repatriation of its
Internet traffic. Thanks to efforts by groups such as the Canadian Internet Registry
Authority (CIRA), the two Canadian IXPs in 2012 grew to eight in 2016, with plans for
11 in 2018.149 As civil society members win small victories, greater opportunities seem
possible. In unveiling the 2017 budget, the standing Liberal government announced it
would undertake a review of Canada’s Telecommunications Act. Its proposal specifically
states that ‘the Government believes in an open and transparent Internet environment
that emphasizes freedom – freedom to innovate, freedom to connect with others, and
freedom of discussion’.150 Such a review would provide the ideal venue for addressing the
need to repatriate domestic Internet traffic.
As surveillance technologies, techniques and potential harms evolve, so too should
tactics for reform. This chapter aimed to make visible an array of tactics different actors
inside and outside government can engage when working towards surveillance reform.
While the examples are mostly Canadian, we believe they should be appropriated, remixed
and translated in different contexts. We believe that, as in the case of the Uruguayan water
movement, tactics for surveillance reform can be developed internationally and adapted
domestically. They may be used in isolation or in concert, depending on shifting political,
economic and social winds in a given context. To engage in policy reform of any sort is
to attempt to work with a constantly moving and shape-shifting target. As the harms of
surveillance become more egregious and obvious, unavoidable to the media, to the public
at large and to their political representatives, challenges to mass surveillance become
146
OpenMedia, https://act.openmedia.org/StopSpyPowers (last accessed March 2, 2018).
147
SECU, Bill C-59, An Act Respecting National Security Matters, available at www.
ourcommons.ca/Committees/en/SECU/StudyActivity?studyActivityId=9807256#2018-02-08 (last
accessed March 2, 2018).
148
Obar and Shade, Activating the Fifth Estate, n. 67 above.
149
Canadian Internet Registry Authority, Canada’s Internet Infrastructure: Made-in-Canada
Internet Exchange Points (IXPs), https://cira.ca/canada%E2%80%99s-internet-infrastructure-
made-canada-internet-exchange-points-ixps (last accessed March 2, 2018).
150
Minister of Finance, Building a Strong Middle Class, #Budget2017 106 (Government
of Canada, March, 22 2017), available at www.budget.gc.ca/2017/docs/plan/budget-2017-en.pdf
(last accessed March 2, 2018).

WAGNER_9781785367717_t.indd 221 13/12/2018 15:25

urgent. Like water, privacy is indispensable stuff for human bodies and minds, as well as
for the social fabric. Collective, continuous and diverse responses to mass surveillance are
necessary, and will hopefully benefit from discussions of tactics that have, in some cases,
advanced reforms.

WAGNER_9781785367717_t.indd 222 13/12/2018 15:25

Light and Obar, Surveillance Harms

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11.

Surveillance reform: revealing surveillance harms

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efforts,8 technological development coupled with a concomitant lack of advancement in

Evan Light and Jonathan A. Obar - 9781785367724

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Drake Building Government of Canada (2016), available at www.cse-cst.gc.ca/en/accommoda​

Evan Light and Jonathan A. Obar - 9781785367724

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2.1 Mass State Surveillance and Journalism

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2.2 Mass State Surveillance, Lawyers and Law-Makers

Client-attorney privilege is seen to be a ‘principle of fundamental justice and a civil

Star, available at www.thestar.com/news/canada/2012/06/14/quebec_government_didnt_care_

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2.3 Mass State Surveillance and the General Public

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2.4 State Mass Surveillance and Harm to the Corporate World

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3. TACTICS FOR SURVEILLANCE REFORM

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Tactic One: Digital Mobilization Against Regulatory Efforts to Expand State

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(1) Mobilizing a digitally-mediated community of individuals As Obar and Shade note,70

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The text of the Valentine’s card read:

Others were more pointed:

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Tactic Two: Building a Popular Non-Partisan Movement

Evan Light and Jonathan A. Obar - 9781785367724

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Evan Light and Jonathan A. Obar - 9781785367724

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Evan Light and Jonathan A. Obar - 9781785367724

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Evan Light and Jonathan A. Obar - 9781785367724

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Millions of communications from

Millions of communications from

Source: EFF. Creative Commons Attribution License (CC BY 3.0 US).

surveillance. Not as obvious, however, is that considerable domestic Canadian Internet

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Source: Snowden Digital Surveillance Archive, https://snowdenarchive.cjfe.org.

Figure 11.2 Snowden NSA Upstream and PRISM Slide

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Source: Snowden Digital Surveillance Archive, https://snowdenarchive.cjfe.org.

Figure 11.3 Snowden NSA ‘Monitoring a Target’s Communication’ Slide

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Promoting repatriation of Canadian domestic Internet traffic to reduce the US

Drake Building Government of Canada (2016), available at www.cse-cst.gc.ca/en/accommoda

4. CONCLUSION: REFLECTING ON THE CANADIAN