Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m J U N E 2 0 1 6 15 \ AT L A N T I C \ C E N T R A L \ P R A I R I E S \ W E S T REGIONAL WRAP-UP F ormer CIA employee and whistle- blower Edward Snowden's revela- tion that international security agencies (including Canada) are operating global surveillance programs with the co-operation of telecommuni- cations companies and European gov- ernments to capture vast amounts of data is raising warning bells in the legal community concerned with client-solicitor communications. It has prompted the Law Society of British Columbia's rule of law and lawyer independence advisory committee to look at creating guidelines for B.C. lawyers some time in 2017. They will aim to safe- guard privileged solicitor-client data-re- lated communications. "We thought this issue was an important one for the rule of law committee to undertake and advise our members on," says bencher and com- mittee chairman Craig Ferris. Ferris says the issue came to the com- mittee's attention following a two-hour presentation and discussion by Michael Geist, the Canada Research Chair in Inter- net and E-commerce Law and professor of law at the University of Ottawa. "It was shocking to discover the extent to which Internet and communication and phone conversation surveillance is conducted," he says. While Snowden's revelations relate mainly to the National Security Administration in the U.S., which captures large amounts of e-mails as well as every cellphone call made in the Bahamas over a certain period of time, Canada is also known to be involved in data transmission surveillance, ostensibly for security reasons. Canada, Ferris points out, is one of the Five Eyes Partners intelligence alliance, along with the U.S., the United Kingdom, Australia, and New Zealand, which is involved in information gathering and sur- veillance of communications. A Vancouver Bar Association Advocate magazine article — entitled "Surveillance of Electronic Communications: Is there anyone out there? Yes, there is," written by the committee members as well as LSBC staff member Michael Lucas, manager of policy and legal services — states that these five member countries share captured information. Incidents involving the vari- ous members have been reported. The Advocate article said the legal com- munity is a specific target of government surveillance as the U.K. government has admitted to unlawfully monitoring legally privileged communications. Another inci- dent points to how information gathered could be abused in future trade or com- mercial dealings. In 2015, the Indonesian government was working with an Ameri- can law firm regarding trade matters relat- ing to the U.S. government. The Australian Signals Directorate monitored those trade talks, including the discussions between the Indonesian government and the law firm. The directorate then offered to share the information with the U.S. NSA. In 2011, former defence minister Peter MacKay is reported to have approved a secret electronic eavesdropping program that scours global telephone and Internet data trails (including those of Canadians) for indications of suspicious activity. The Canadian Communications Security Estab- lishment has gathered data as well and has used airport Wi-Fi to track Canadian trav- ellers, Ferris points out. "There is no doubt there are legitimate reasons for gathering information such as security risk," Ferris says, but it is being done without the ben- efit of case law established over a century balancing the rights of individuals with the right of the state. "You don't have an equal opportunity to balance the legal values and the constitutional principles against the need for security," he says. Ferris says there is also specific Cana- dian case law relating to what is privileged and confidential communications between a client and a lawyer, but there is no assur- ance this guiding framework is influencing how Canadian surveillance agencies moni- tor, collect, store, and use that information. One successful court challenge has already come forward. A press release from the Council of Bars and Law Societies of Europe in July 2015 announced a Dutch court decision, where the court ordered the government to cease all interception of communications between lawyers and their clients when carrying out state surveillance. The council, which had intervener status, noted that such an intrusion represented "an infringement of fundamental rights." Ferris says the LSBC committee real- izes it does not have the power to affect other countries or those engaged in spying activities, but "there is a need for some boundaries" that provide fundamental principals in the modern era of data col- lection by Canadian surveillance agencies. He says while there is no immediate plan to take the issue to government or initiate a test case in court, it may be necessary in the future. "This is not about lawyers," says Ferris. "Privilege is a client privilege and we are protecting people who are getting legal advice unrestrained by the government knowing what they are doing. Canadian lawyers are required as an ethical duty to maintain that confidence." Ferris is hopeful lawyers will discuss this with clients and a broader knowledge of the problems associated with capturing privileged and confidential information by government will lead to more pressure on legislators to set guiding rules. In the meantime, the rule of law com- mittee is attempting to provide guidelines similar to the LSBC's on the use of cloud computing. Ferris says lawyers should be aware of the situation and the "difficulty faced maintaining those ethical require- ments in the growing technical world." Ferris is looking for feedback from the legal community and those with input can contact the LSBC. — JEAN SORENSEN jean_sorensen@telus.net Keeping up with the spies

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