domestic ones. The U.S. government has moved to dismiss lawsuits filed against
it and against AT&T by asserting the state secrets privilege; district courts in California
and Michigan have refused to dismiss the lawsuits. If the allegations prove to be true,
they show that the United States maintains the world’s most sophisticated Internet
surveillance regime. The Bush administration also pushed to expand the Communications Assistance to Law Enforcement Act (CALEA) to force providers to give law
enforcement wiretap access to electronic communications networks. The attorney
general under the Bush administration, Alberto Gonzales, called for data retention
laws to force ISPs to keep and potentially produce data that could link Internet
subscribers to their otherwise anonymous communications. 90 During Barack
Obama’s election campaign, he criticized both the Bush administration’s use of
warrantless surveillance and its reliance on the state secrets privilege, yet in January
2009 defended congressional legislation immunizing telecommunications companies
from lawsuits regarding their participation in the Bush administration’s surveillance
programs. 91
The U.S. government is required to produce annual reports on the number of wiretaps it conducts under Title III of the Omnibus Safe Streets and Crime Control Act of
1968 (the ‘‘Wiretap Act’’), as well as communication interceptions conducted under
the Foreign Intelligence Surveillance Act (FISA) and the Pen Register and Trap and
Trace statute (Pen/Trap statute). 92 No reports have been provided under the Pen/Trap
statute since 1998. 93
In Canada, Part VI of the Criminal Code governs the powers of law enforcement to
engage in electronic surveillance of private communications when conducting criminal investigations. The Criminal Code requires the production of annual reports on
the details of the interceptions that occur. 94 Canadian electronic surveillance for foreign intelligence is primarily undertaken by the National Defense’s secretive Communications Security Establishment (CSE), which operates in close cooperation with its
U.S. counterpart and other allied intelligence networks. A commissioner is appointed
to review the actions of the CSE and produce annual reports commenting on the adherence of the agency to its legislative mandate in the National Defense Act. 95 The
commissioner’s annual reports, while providing some oversight, provide little additional transparency, as no statistics on the number of communications interceptions
are reported.
Conclusion
While there is little technical filtering in either country, the Internet is subject to substantial state regulation in the United States and Canada. With respect to surveillance,
the United States is believed to be among the most aggressive countries in the world in
terms of listening to online conversations.
United States and Canada Overview
381
it and against AT&T by asserting the state secrets privilege; district courts in California
and Michigan have refused to dismiss the lawsuits. If the allegations prove to be true,
they show that the United States maintains the world’s most sophisticated Internet
surveillance regime. The Bush administration also pushed to expand the Communications Assistance to Law Enforcement Act (CALEA) to force providers to give law
enforcement wiretap access to electronic communications networks. The attorney
general under the Bush administration, Alberto Gonzales, called for data retention
laws to force ISPs to keep and potentially produce data that could link Internet
subscribers to their otherwise anonymous communications. 90 During Barack
Obama’s election campaign, he criticized both the Bush administration’s use of
warrantless surveillance and its reliance on the state secrets privilege, yet in January
2009 defended congressional legislation immunizing telecommunications companies
from lawsuits regarding their participation in the Bush administration’s surveillance
programs. 91
The U.S. government is required to produce annual reports on the number of wiretaps it conducts under Title III of the Omnibus Safe Streets and Crime Control Act of
1968 (the ‘‘Wiretap Act’’), as well as communication interceptions conducted under
the Foreign Intelligence Surveillance Act (FISA) and the Pen Register and Trap and
Trace statute (Pen/Trap statute). 92 No reports have been provided under the Pen/Trap
statute since 1998. 93
In Canada, Part VI of the Criminal Code governs the powers of law enforcement to
engage in electronic surveillance of private communications when conducting criminal investigations. The Criminal Code requires the production of annual reports on
the details of the interceptions that occur. 94 Canadian electronic surveillance for foreign intelligence is primarily undertaken by the National Defense’s secretive Communications Security Establishment (CSE), which operates in close cooperation with its
U.S. counterpart and other allied intelligence networks. A commissioner is appointed
to review the actions of the CSE and produce annual reports commenting on the adherence of the agency to its legislative mandate in the National Defense Act. 95 The
commissioner’s annual reports, while providing some oversight, provide little additional transparency, as no statistics on the number of communications interceptions
are reported.
Conclusion
While there is little technical filtering in either country, the Internet is subject to substantial state regulation in the United States and Canada. With respect to surveillance,
the United States is believed to be among the most aggressive countries in the world in
terms of listening to online conversations.
United States and Canada Overview
381