USA PATRIOT Act and the controversy of Canada

USA PATRIOT Act and the controversy of Canada

Summary: ZDNet's USA PATRIOT Act series: The controversy of Canada, cloud computing and an act of law which holds America's closest neighbor to data protection ransom.

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This is the first in a series of posts that examine the principles governing the transfer of data across borders between the European Union and the United States, and the effect that the USA PATRIOT Act has on businesses, citizens and governments outside the United States. Although this is a U.S.-oriented site and I am a British citizen, the issues I surface here affect all readers, whether living and working inside or outside the United States.

The USA PATRIOT Act held prominence in American society shortly after the September 11 terrorist attacks, and played a crucial role in enhancing the search capabilities of law enforcement.

But as the scales of justice sway toward the law itself, an erosion of civil liberties became apparent -- even to the U.S.'s closest neighbour, Canada.

Post-9/11 and the Patriot Act

The U.S. counter-terrorism strategy has been strengthened in light of the home grown and foreign terror threat to the mainland. However, the terrorist attacks against the U.S. on September 11, 2001, sparked a change in U.S. policy on gathering intelligence to prevent further attacks.

About a month after the attacks, the U.S. Congress passed a new counter-terrorism law, commonly abbreviated to the USA PATRIOT Act 2001.

The controversial USA PATRIOT Act, commonly known as the Patriot Act, revised and consolidated counter-terrorism laws post-9/11 to enhance domestic law enforcement investigatory authority, including sweeping surveillance and search powers; while some claim the elimination of judicial oversight to ensure these powers are not abused.

Most US citizens living in the U.S. are aware of the Patriot Act as the "counter-terrorism law". But the act consolidates, refreshes and bolsters existing laws to improve federal resources to enable those fighting the war on terror to intercept communications and acquire intelligence to prevent what is considered modern day terrorism.

For a brief overview of the Patriot Act, such as the amended legislation and the new provisions accepted by Congress in light of the September 11 attacks, the College of Law at the University of Arizona and the School of Psychology at Juniata College have more.

The 2001 Act, for example, takes into account new technologies which enable acts of cyber-terrorism, prohibit the act of knowingly harbouring a terrorist; and provide law enforcement with the ability to delay the notification of a court-approved search warrant in order to prevent a suspect from destroying evidence or fleeing. In some cases, the Act simply refreshes certain areas to make it current with the times of today.

However, the Act has been criticised by academics as a "knee-jerk reaction" to the September 11th attacks, suggesting that it infringes the constitutional rights of ordinary citizens and foreign nationals by authorising surveillance without the necessary requirement of a court order.

However, many have argued that the rules of engagement have changed entirely and that citizens should allow certain civil liberties to be "eroded", in order to prevent another major terrorist attack.

As a U.S. law, the Patriot Act applies to everyone living and visiting the country, including any foreign national who spends time on U.S. soil as part of a visa arrangement. The Act also applies to companies based in the U.S., whether they are headquartered there -- such as Apple, Google or Microsoft -- or are a subsidiary of a larger non-US company.

For example, although the BBC has its headquarters in London, it also has studios and offices in the U.S., making these U.S.-based offices vulnerable to the Act.

Many users of popular web services or cloud services are unclear of the laws in effect or even the jurisdiction under which users and service providers fall.

Yet, many services, products and websites, including those made available by the cloud, are provided by U.S.-based organisations. Cloud services are often sourced from localised companies (like Google UK or Microsoft UK) for citizens in the United Kingdom, instead of dealing directly with the U.S.-based corporations.

Because the Patriot Act legislation covers U.S. companies, data that is housed or passes through the United States is vulnerable to interception by authorities.

Arguably, one of the more controversial elements to the Patriot Act is the provision made available to U.S. law enforcement officials and intelligence agencies to demand that an organization or entity hand over stored records or data without a court order.

Using this provision of the Patriot Act has been challenged in court. An FBI-issued National Security Letter (NSL) prevented Nicholas Merrill, then ISP and now founder of the Calyx Institute, from disclosing to anyone his court challenge.

A U.S. District Court Judge struck down the 'gagging order' -- the National Security Letter -- ruling that it was "unconstitutional" as it violated the right of free speech under the First Amendment and the right to be free from unreasonable searches under the Fourth Amendment.

More information on the use of NSL's can be found in the ruling document, mirrored by the Electronic Frontier Foundation (EFF).

How does Canada fit into all of this? »

The controversy of Canada

Since being signed into law in 2001, the Patriot Act has been cited as a viable reason for Canadian companies, government departments and universities to avoid the cloud due to the close proximity to the United States.

Privacy and data protection and control laws are strict in Canada. Canadian officials are concerned with the level of protection the United States can provide with foreign data. The Canadian privacy commissioner, Jennifer Stoddard, said she hoped the Canadian government would introduce an updated form of the existing Canadian Privacy Act 1983, to counter the current government surveillance capability.

Last year, I reported on the small number of Canadian schools, colleges and universities adopting the outsourced email systems offered by both Google and Microsoft in comparison to the adoption rates by educational institutions in the U.S. and the EU. Microsoft had not published any case studies of users in Canada, and Google only appeared to have four schools in the region since mid-2010.

According to Kisluk and Gross in 2005:

"Prior to the passage of the Patriot Act, Canadians' personal information in the custody or control of US-linked organizations could be accessed by US authorities by other means, such as national security letters or grand jury subpoenas, or through governmental channels. The Patriot Act, it has been suggested, simply "broadened the scope and lowered the standard for the issuance of such orders."

As NSL's are used to gag organisations under the Patriot Act, the individual under suspicion or investigation may not be told as such. Canadian law says that when the individuals' data is moved, including across borders, the individual whose data is of interest must be informed. Therefore, the gagged organisation could be in breach of Canadian law if they uphold the gagging order under US law.

Following a 10-week investigation into the Patriot Act, David Loukidelis, then Information and Privacy Commissioner for British Columbia, put forward sixteen recommended changes to the law, including:

"Legislation should be passed to make it an offence for a public body or a contractor to disclose personal information or send it outside Canada in response to a foreign court order, subpoena or warrant, with violation being punished by a fine of up to $1 million or a term of imprisonment, or both;"

Yet some argue that Canadians are too quick to denounce the cloud because of the Patriot Act. David Fraser, a Halifax-based privacy lawyer, argues that the Canadian Anti-Terrorism Act 2001, which passed into law with Royal Assent shortly after the  Patriot Act became law, performs similar functions for Canada's intelligence community.

Fraser goes on to highlight further similarities between the laws, summarising this by saying:

"Canadian authorities can get information in the U.S. without a warrant and American authorities can get information in Canada without a warrant" and this happens on a daily basis."

Opposing this view in the same article, one chief technology officer based in Montreal, advocated:

"[a] strategic value in having 'pure bred Canadian cloud providers' that fall into Canadian jurisdiction, which would also provide an option that Canadian government and military can use."

Nevertheless, the issue many Canadians face with the Patriot Act lies in their recognising it as a foreign piece of law which allows a foreign government to access their personal data for the benefit of the United States and, potentially, its overseas allies. Their argument is, "what right do they have?".

The Canadian government's response »

The Canadian government, through its Chief Information Officer's website, has provided a comprehensive list of frequently asked questions which explains the risks that the Canadian government perceives with the neighbouring Patriot Act.

In response to the concern over privacy and the protection of personal information for Canadian citizens, the FAQ also highlights that Canada is not the only country at risk from information interception:

"Under the [USA PATRIOT] Act, US officials could access information about citizens of other countries, including Canada, if that information is physically within the United States or accessible electronically. The potential exists, therefore, for law enforcement agencies to obtain information about Canadians whose information might be handled under a contract between the federal government and a US-based company."

Another point from the FAQ goes on to consider the private sector; notably the rise in outsourcing of Canadian operations and infrastructure to more protected and insulated firms and organisations:

"When a supplier is hired to administer personal information and any part of its operations, including subcontractors, are [sic] outside of Canada, then the laws of the other country (or countries) may be applicable to information stored or accessible electronically in the foreign country. If a company located in the United States or with U.S. connections is hired, then the USA PATRIOT Act may be applicable."

Though the Canadian federal government is not aware of any such case existing where personal information of one of its citizens was accessed under the Patriot Act, Canada maintains the risk remains.

Canada's domestic security service sparked controversy by using surveillance laws to gather information on its own citizens, including a major broadcaster, a religious organisation, and a political party.

The United Kingdom has intelligence gathering policies similar to Canada's. Not only a close ally of the United States in intelligence-sharing and military capability, the UK is also a fellow Commonwealth country to Canada by sharing the same monarch. The UK not only has laws in place to collect intelligence to bolster foreign policy, foreign relations and to prevent domestic terrorism, but also data protection legislation which applies the EU-prescribed 'Data Protection Directive.'

Citizens of all countries have largely come to accept that governments monitor our communications to a degree, in a bid to provide a state of national security to fight terrorism and minimise the threat to their countries. Our governments are after all accountable to the voting public.

But when a stronger entity like the United States uses its domestic policy to authorise the secret gathering of intelligence from another country, as seen with the Patriot Act vs Canadian privacy laws, the Canadian government has shown an obvious cause for concern.

Continue reading

Next up: An overview of the Safe Harbor principles, prescribed by the European Commission to protect European governments and citizens from breaches in privacy. Read more.

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Topics: Government US, Government

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  • RE: USA PATRIOT Act and the controversy of Canada

    Does anyone remember McCarthy? A Senator who abused his access to information to vilify and destroy those people with an independant point of view. With the best of intentions (fighting the cold war) he killed his fellow Americans in the name of protecting thier freedom.

    As always, legislation *must* stand the test of time; the Patriot act will not, it will morph into a viper that will be used in ways never intended or imagined. This act will do more damage to the US than Bin-Laden ever will.
    lkujala
    • RE: USA PATRIOT Act and the controversy of Canada

      @lkujala It already has and not only to US but internationally. US has lost its reputation of being a great country coming to aid oppressed ones... a reputation that so many WW2 veterans and dead soldiers contributed to give to USA. Since then US has unfortunately failed to remain true to that reputation with interventions and wars that weren't called for... still the country kept the reputation of being "the land of the free" where a marvelous constitution granted civil rights and protected the liberties of all US citizens... so much for that. During the GW Bush (and cabinet) 8-year dictatorship the Constitution was effectively burnt to ashes. Will US ever recover? Probably not until every single citizen will become aware that when they are told they are free today, it's a lie and nobody can prove otherwise no matter how many more lies they tell and no matter how much mud they will sling at those who tell the truth... calling someone conspiracy theorist has always been the preferred method to dismiss the truth, more or less when those in the streets against the war in Iraq were called unpatriotic... that's the Orwellian world where War meant Peace! Like Ripley would say Unbelievable? Believe it.
      freakqnc
      • How is getting elected TWICE, the same as a dictatorship?

        You immediately lose all credibility when you you start off with complete fabrications about how the leaders of the U.S. are chosen or "become dictators". <br><br>Your hate is getting in the way of the facts.
        adornoe
      • RE: USA PATRIOT Act and the controversy of Canada

        @freakqnc <br><br>even in your words i see damage to basic understanding that is difficult to repair.<br><br>the Constitution of the United States of America <i>grants</i> <b>nothing</b> to the people<br><br>the Constitution officially <i>recognizes</i> that these rights are inalienable human rights; that no government has the <i>legitimate</i> power to grant or deny these rights<br><br>that seemingly minor difference in understand has been mostly lost, and the general population of the US now assumes that the Constitution grants these rights, and with the power to grant also comes the power to deny<br><br>unless/until that broken understanding is fixed, the US as a whole will continue to poison itself
        erik.soderquist
    • Would you mind proving who and when and where McCarthy &quot;killed&quot; anyone?

      Furthermore, McCarthy was proven correct. But, with a liberal congress and a liberal media, it was impossible for McCarthy's message to actually get through to the public and for the actual truth to get heard.<br><br>Try a bit more facts before you take off in a diatribe full of lies.<br><br><b><a href="http://www.conservapedia.com/Joseph_Mccarthy" target="_blank" rel="nofollow"><a href="http://www.conservapedia.com/Joseph_Mccarthy" target="_blank" rel="nofollow">http://www.conservapedia.com/Joseph_Mccarthy</a></a></b><br><br><b>McCarthyism<br><br>McCarthy is permanently associated with "McCarthyism" -- he did not coin the term but he did use it, to mean an aggressive attack on Communists who had infiltrated America, and on the liberals who protected them, without regard for due process. Although the left was unable to make heroes of the people who supported and sometimes were controlled by Stalin, they did make heroes of opponents of McCarthy, painting him as the internal menace to American values that was far worse than Communist subversion. Schrecker (1998) sees McCarthyism t as anti-Communist political repression of the early Cold War, and explores its mechanisms through, and what she considers the exaggerated public fears on which it depended. During the 1940s-1950s, McCarthyism took on a variety of forms with an array of agendas, interested parties, and modes of operating. Despite its widespread and popular character, it started with the federal government and was driven by a network of dedicated anti-Communist crusaders such as J. Edgar Hoover. McCarthyism's repression both responded to and helped create widespread fears of a significant threat to national security.<br><br>Margaret Chase Smith, Republican senator from Maine, gained a national reputation as one of the earliest critics McCarthyism with a Senate speech on June 1, 1950, called "the Declaration of Conscience." It was an attempt by Smith to address the excesses of McCarthyism, and was widely hailed as a call to reason by McCarthy;s opponents. Smith gave a critique of the American political process and political institutions in the responses to dissent on the left and the right. Smith, like other McCarthy critics, sought to bring a level of civility to political protest and dissent. She and many others who objected to the tactics of McCarthy actually believed in the underlying tenets of his anti-Communist crusade. Their responses to his excesses reflected a desire to narrow the scope of acceptable political dissent.[8] </b><br><br><br>One thing to remember is that, to every story, there is an opposing and perhaps even better or truer side. <br><br>Also remember that, he who controls the message, gets to tell the message according to his views and ideology.
      adornoe
      • RE: USA PATRIOT Act and the controversy of Canada

        @adornoe@... Since when was Stalin a Communist? Under the Marxist definition of Communism: "Where the means of production are owed by the people" Stalin was Socialist. Union of Soviet Socialist Republics, USSR for short. NOT Union of Soviet Communist Republics which would have been USCR When will people learn the facts rather then just parrot misinformation?
        csumbler
      • RE: USA PATRIOT Act and the controversy of Canada

        @csumbler

        the people at large? never... they will always be mindless parrots
        erik.soderquist
      • csumbler: Get real, will you!?!?!

        Stalin, and all the "leaders" of the Soviet Union, were communists, and it doesn't matter that their economic system was "socialist". Communism is the more harsh and despotic cousin of socialism. It is socialism with a strong arm government to insure that, socialism is enforced.

        The USSR had an economic system based on socialism, and the only difference in communism is the total control used by the Soviet Union to enforce its socialist policy.
        adornoe
  • RE: USA PATRIOT Act and the controversy of Canada

    The Patriot Act is an abomination and must be ended! It set US back to the middle ages in freedom and protection of the civil liberties as much as the ban on stem cell research did in science. Ben Franklin said "A Republic, Ma'am, if you can keep it." Can we prove to him that we can keep it? Surely hasn't looked like that much in the past 200+ years! Ben already knew we the people would fail.

    Maybe it would be a bit clearer where all this is going if you were to take a look at Aaron Russo's: America, Freedom to Fascism, the last denounce on video that he made before he died on August 24, 2007. I wonder when we'll start doing something about it.
    freakqnc
  • RE: USA PATRIOT Act and the controversy of Canada

    Extremely well-written article. Bravo.
    jcmg
  • RE: USA PATRIOT Act and the controversy of Canada

    Good informative read. Thanks.
    ITOdeed
  • RE: USA PATRIOT Act and the controversy of Canada

    "including any foreign national who spends time on U.S. soil as part of a visa arrangement. "

    So, the Patriot Act doesn't cover illegal aliens.
    bb_apptix
    • RE: USA PATRIOT Act and the controversy of Canada

      @bb_apptix Granted, you're right -- it covers US citizens on US soil, and both foreign nationals who are legally allowed to reside in the US, and those staying illegally, too. Basically, any person on US soil. But wait until tomorrow because that in itself may not be entirely true...
      zwhittaker
  • RE: USA PATRIOT Act and the controversy of Canada

    @freakqnc

    Dude... the U.S.A. stopped following the US Constitution long before GW Bush, who wasn't a dictator, took office.
    bb_apptix
    • RE: USA PATRIOT Act and the controversy of Canada

      @bb_apptix It started with Lincoln, and the initial use of Executive Orders to get what Congress, expressing the will of the people, were never going to give him ... a strong central government telling the states, and the people, what to do.
      Too Old For IT
      • RE: USA PATRIOT Act and the controversy of Canada

        @Too Old For IT
        Those that broadly protest the power of the federal government to tell the states and the people "what to do", seem to forget that States sometimes fail to uphold some of the most essentials tenets of the Constitution. Should the Federal government have stood by passively when it's member States insisted on their rights to practice slavery or racial discrimination? When States or people break the law, well that's when they need to be "told what to do."

        As long as the States are part of the U.S., they can and should be subject to oversight to prevent them from subverting the principles and laws upon which the ENTIRE country is founded.

        Of course, Federal officers and authorities are also guilty of breaches of legal rights and I will agree with those who call for a better system to be put in place to tell Federal government "what to do", when necessary.
        partofthepuzzle
  • RE: USA PATRIOT Act and the controversy of Canada

    It's a shame that Zack never gets around to saying much. A shame but not unusual. This guy ought to be canned. He's a terrible writer with nothing to say.
    kenaaa2
    • RE: USA PATRIOT Act and the controversy of Canada

      @ken@... Care to elaborate?
      zwhittaker
      • RE: USA PATRIOT Act and the controversy of Canada

        @zwhittaker

        The comment strikes me more as sarcasm than critique. I for one thought the piece was well conceived and written.
        terry flores
      • RE: USA PATRIOT Act and the controversy of Canada

        @terry flores Thanks, Terry. I appreciate that, sincerely.
        zwhittaker