Interview with Abby Deshman

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I Interviewed Ms. Abby Deshman of the Canadian Civil Liberty Association to get a professional perspective on freedom and privacy issues in the contemporary Canadian media landscape. Here’s what we discussed:

[MH] To get things started, please introduce yourself.

[AD] Sure, my name is Abby Deshman, and I’m a lawyer and program director with the Canadian Civil Liberties Association.

[MH] So what exactly is it that the CCLA does?

[AD] The CCLA is a non-governmental, non-profit, and non-partisan advocacy organization founded in 1964 with a mandate to protect the basic rights and freedoms of everyone present within Canada. We have four program areas: an equality program, a fundamental freedoms program that deals with freedom of expression, freedom of religion, association, that sort of thing. My program area, public safety, deals with police powers, criminal law, police oversight and accountability, and privacy. And then we have a national security program.

[MH] As you probably know, Open Media and your program area both share a focus on privacy. What do you think are some of the biggest civil liberties issues Canadians are facing today?

[AD] That’s a really big question, because civil liberties is a very broad topic!

[MH] Feel free to give a broad answer!

[AD] I can talk about my specific program area? Since we’re talking about privacy, I’m happy to talk about that.

[MH] Sure.

[AD] I think that figuring out how to keep privacy protections viable, in a world where there is an exponentially expanding amount of information that is collected, stored, and available to be disclosed, is one of the biggest challenges that we’re facing. Especially because traditionally privacy has relied in a large part on consent: in a personal ability to choose who you are sharing your information with. And we all know that consent is a difficult concept when we think about contracts that we just sign, or agreements where we just click ‘Yes’ to access certain services. There’s a really question about whether that is still meaningful. So I think it’s important to figure out, both for the government and for private companies, how do you protect consumer and individual privacy. That’s going to be, and is, one of the main questions moving form.

[MH] I want to follow up on the idea of consent. Do you think the government should ever have the power to overrule citizen consent?

[AD] Yeah absolutely, and there are many times when the government does have the power to overrule your consent. The first and foremost example being the traditional warrant. The government very rarely gets consent from someone before a warrant is issued because the whole point of a warrant is that the government doesn’t need a person’s consent but they want to search a person’s home or private information anyway. So there are all kinds of times when the government is justified in searching private information, the question is when you do it without consent, what are the safeguards, what are the oversight regimes, what are the accountability regimes, what rationale and evidence does the government have to bring to prove that the invasion into your privacy is actually warranted?

[MH] So I’m guessing that has a lot to do with the internet, as that’s where a lot of our information has been directly stored. What kind of work has the CCLA been doing in regards to protecting online freedom?

[AD] We are in the Stop Online Spying coalition with Open Media, so we were very active on Bill C30, which is the quote-on-quote Lawful Access, or online spying legislation. And we also have intervened in a lot of cases recently. There’s been a whole slew of cases examining police powers and government powers to access and search private information both online and in cell phones, and other digital devices. We have had an active litigation docket trying to persuade a pallet court that these are extremely invasive searches and need to subject to high levels of legal and judicial controls. And so far we’ve had a decent amount of decent amount of success at the Supreme Court on privacy rights and technology. And we also have a whole series of cases on expressive rights online. We have litigated a number of cases where individuals were either sued for the defamation of a public figure by the government or town councils are usually who does this, or were people were funded by the government to pursue defamation suits, or there have been cases where invidiuals have been trying to unmask anonymous online commentary using the civil law, using a defamation suit to figure out who was writing comments about a politician or public official. So we’ve actively litigated protections for anonymous online commentary as well.

[MH] Okay, so freedom of expression is a big issue for you guys as well?

[AD] Yes, definitely. Especially related to the internet: so much of the internet is related to expression, and it’s one of the great promises of the internet, that it is a democratic expression forum. And a lot of what happens online is either presumed to be anonymous or expected to be anonymous, people generally get to choose whether they attach their names to comments. Anonymity can be a very important form of expression, there’s all kinds of discussions that may not happen if people’s names are associated with what they’re saying. That can be both good and bad, but from an expression point of view, it’s important to maintain an anonymous space when people choose to do that.

[MH] To follow up on that: Why do you think this free anonymous expression is so important?

[AD] Well, when we think about the values of why we protect freedom of expression, one of them is truth-finding, another is robust discussion, you can think of many circumstances where the truth would not be found had it not been for anonymous expression. So whisteblowing is the prime example where anonymity is necessary to reveal some truths about how our society is operating. You can also think about free expression as a discussion forum for experimental ideas: There may be ideas that people are unsure about, that they don’t want to associate their name with, forever and always easily finding through a Google search. Does that mean those ideas shouldn’t be expressed, or shouldn’t be put into the public forum for discussion and debate? One of the values of freedom of expression is that it does allow for trial-and-error, rejection of ideas. Finally, expression is valued for self-fulfillment reasons. We know that people may have very private aspects of their lives that they feel are very important, but they are not willing to share with the world at large. This is important in an online context because often it is very difficult to control, once your name is associated with something, who has access to that information.

[MH] Switching gears a little bit, I want to talk about cell phones. I think the two biggest fundamental changes to society in the last decade were cell phones and the internet. Have you guys been working with phone issues?

[AD] Definitely, there have multiple issues relating to cell phones and privacy that have been really important. There was the Telus decision, at the Supreme Court, that examined whether the police needed a wiretap authorization in order to access text messages that will be sent to and from someone’s cell phones. So this really was about people using cell phones (specifically with Telus, because of the way they transferred their text messages), whether these people would have the same legal protections and the same privacy protections as everyone else normally expects when we have verbal conversations. So the Supreme Court, from our perspective, gave a great ruling, ensuring that just because we changed the way we’re communicating, doesn’t mean that we should lose privacy protection. Similarly there’s another case at the Court of Appeals called Fearon, it’s a case about whether the police can search your cell phone incident to arrest. For this one we were not quite as happy with the decision, we were hoping that the Court of Appeals would recognize that there is an enormous amount of information that we carry around in our back pockets, way more than we would have ever had access to ten years ago, and that the traditional rules guiding police search and seizure on arrest really need to take into account how privacy invasive searches of cell phones can be. The Court of Appeals didn’t quite do that, they said that if the cell phone isn’t password protected in that moment, the police can search it without a warrant incident to arrest. These are just two examples of how cell phones and search powers are coming before the court, it definitely is not the last word on this subject and there are a whole host of unresolved questions with that judgment specifically that make me think it will be litigated again in the near future.

[MH] So cell phones are clearly a very important issue. You mentioned password protecting your phone would exempt you from having your phone searched in that case, is there anything else that the average Canadian can do to protect their privacy?

[AD] Password protecting on your cell phone and basically all your private information is a very good and very basic step. Making sure those passwords are actually meaningful, like making strong passwords and making different passwords is really key. And then, people really have to start examining and critiquing companies and service contracts and trying to pay more attention to what companies are doing with their private information. This can be difficult, and to be honest, I, as a lawyer, do not read every single word in a service contract before I click ‘Ok.’ But we do need to start paying attention to this. There are ways that we can pool resources and work together so that we do not all individually have to do this type of analysis in order to ask questions on how companies are using our personal information and how are they protecting our privacy.

[MH] You mentioned that we should pay attention to how companies are operating. Do you think any of the responsibility of protecting people’s liberties falls on the companies, or do you think it all falls on the government?

[AD] Absolutely it falls on companies as well. Legally they have an obligation to protect people’s privacy, and I think that from a responsible social participant perspective they also have responsibilities. I think we all benefit, including corporations, from living in a viable democracy where privacy is protected. Privacy is not only an individual good but also a social good, we need privacy in order to have a truly free society where people can experiment, and decide what information they want to share with whom and when. I think that’s a responsibility that’s shared among all Canadians, including companies.

[MH]  Is there anything going on in Canadian politics right now that you think people should be more aware of?

[AD] Well there are all kinds of discussions going on right now in Canadian politics that people have been discussing. There are two privacy related bills currently before the federal Parliament that are being actively talked about, Bill C12 and Bill 475 (the private member’s bill). Also just this morning was a release from a parliamentary committee from a long report on privacy and social media, so about companies like Google, Facebook, and Twitter along with a discussion where privacy laws need to go in order to ensure that they are viable. So getting engaged in these kinds of discussions and paying attention to what are legislators are doing and saying, and looking out for the best practices and pushing for them at the political level is really important.

[MH] For my last question I’m going to throw you a bit of a curveball. I’m also American as well as Canadian so American politics greatly interest me. There’s been a lot of talk in the US about this CISPA Bill, what are you thoughts on it?

[AD] I know that people are very concerned about certain provisions and the privacy intrusions they would authorize. I also know that it’s not receiving as much attention and pushback as SOPA did from industry, and my understanding is because it would not be as costly for industry if it were to be enacted. We do need to pay close attention to how the US deals with private communications, because so many of our communications are routed through the United States. So it’s great if Canada has the necessary protections for online communications, we need to absolutely make sure those stay there and are improved, but because the US has access to so many communications that are not only physically stored in Canada, we do need to pay close attention to how other countries are using our personal information as well.

[MH] Great, thank you! Those were very informative answers and I really appreciate you doing this.

[AD] Good! It’s my pleasure.

By Max Honigmann, via Skype

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