Revelations that Montreal police have conducted covert surveillance on several investigative journalists in Quebec has prompted a public inquiry and led Canada’s Privacy Commissioner Daniel Therrien to argue in the Globe and Mail on November 9 that the revelations highlight the “risks” posed by surveillance and laws like Bills C-13 and C-51, which enable and expand such activity.

He’s right, of course, but now privacy advocates and experts need to  clearly define and communicate what those “risks” are and why they should matter to law-abiding Canadians. This effort is needed to engage the public and also to help inform the public policy debate on the pending review of C-51, the anti-terrorism law.

Government readily justifies surveillance in simple and stark terms that most Canadians understand: it is about stopping crime and terrorism. But the threats surveillance poses to Canadians and their daily lives are more amorphous and often difficult to define.

Fortunately, there is a growing body of research illustrating how government and national security surveillance has an insidious chilling effect on rights and freedoms, leads to self-censorship and threatens democratic debate.

PEN International, for example, published a study that explores the impact of Edward Snowden’s June 2013 revelations about US government national security surveillance on writers and journalists. The survey of 520 writers found that the surveillance drove respondents to “self-censorship.” This included not speaking or writing about topics that might “subject them to surveillance” and avoiding controversial websites and search engine terms.

Pew Research also found, in a 2015 study, that 87 percent of Americans had heard something about government surveillance programs reported in media. This led them to change their online activities in many different ways, including how they used e-mail, search engines and social media.

These subtle chilling effects are nevertheless concrete and tangible. My own study on online surveillance and Wikipedia use found statistically significant reductions and shifts in traffic to privacy-sensitive Wikipedia content before and after the 2013 Snowden revelations.

With new awareness that government may be monitoring online activities, Wikipedia users appeared to be avoiding content that might raise privacy concerns, for example legal content on issues of public policy debate such as terrorism.

Another study, published at MIT, found evidence of chilling effects associated with online surveillance in Google search data. The authors found a 10 percent drop in the use of privacy-sensitive Google search terms after the 2013 Snowden revelations.

And consistent with this research, an experimental study published in May 2016 found that when Facebook users were notified that their activities on the platform were subject to “interception and surveillance,” those users self-censored. They “dampened” their political views and, in other contexts, they were less willing to defend those views or refrained from expressing political views if they thought their views might “alienate” them from their peers or from government.

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This body of research illustrates how surveillance harms. Surveillance does not seem, at least in the beginning,  to have a clear and obvious impact on people’s rights and interests. Its operation is subtle and insidious — behaviour changes slightly and, over time, this leads to conformity, group-think and weakened democracy.

The operation  of surveillance is subtle and insidious — behaviour changes slightly and, over time, this leads to conformity, group-think and weakened democracy.

When they are aware that government may be watching, people self-censor their political views. They avoid talking, writing or speaking about things that might attract scrutiny or alienate others. They subtly modify how they communicate with friends and families. Journalists change how they deal with sources.

People use e-mail and social media differently and self-censor the content they share online. They avoid controversial keywords and terms in online search engines. They avoid reading about controversial topics, even if that content is legal, including subjects that are important in political and public debate, such as terrorism.

It could be argued that in the face of threats such as terrorism and serious crimes, a subtle change in what one reads or how one uses e-mail is minor, especially, if it is a question of only individual instances of chilled behaviour or activity.  But when we look at it from a broader societal perspective, we can see how, over time, the kind of surveillance employed by national security and law enforcement agencies has a clear and corrosive impact on a free and open  society.

It promotes self-censorship, and self-censorship limits dissenting opinions and diverse voices in public policy debates. It chills writing, communication and sharing on matters that might attract scrutiny, thus undercutting sound research and investigative journalism.  And when people are less willing to search for, access and consume information on sensitive, controversial or contentious topics, they cannot inform themselves in order to critically assess media, contribute to public discussion and exercise their right to vote.

These are the stakes in the coming public inquiries and debates about government surveillance in Canada, and laws like Bills C-13 and C-51, which enable, expand and promote it. Although the Quebec police targeted only investigative reporters, under surveillance we all have less freedom and, in the long run, we have a far less healthy democracy.

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Jon Penney
Jon Penney is a legal academic and PhD candidate in communication sciences at the Oxford Internet Institute, University of Oxford (Balliol College). A former Berkman Fellow at Harvard's Berkman Center for Internet and Society and Google Policy Fellow, Jon is an Assistant Professor at Schulich School of Law, Dalhousie University, and a Research Fellow at the Citizen Lab, Munk School of Global Affairs, University of Toronto. His interdisciplinary research focuses, among other things, on human rights, privacy, censorship, and security, especially as they intersect with information law and policy. Follow him on Twitter here: @jon_penney

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