NADIA GUO
<Staff Writer>
It’s a bad time to be studying law. Perhaps others have said it before. Did others say it before? All I want is that simple consolation prize; to know that others have felt the way I have felt. (Is that the human condition? To sit in good company.) I mean, I was always critical of certain aspects of the law, especially post-G20 and #occupy. The question of whom the law really serves always looms above my head. But a year ago when I first started out at Osgoode, I was still somewhat wedded to the idea that law separates us from chaos, and that texts like the Charter were a true shield against corruption and interference with individual liberties. I wasn’t going to law school to change the world and feed every starving World Vision mascot or anything, but at least I could get to know the system a little better, sidle up to it, sway into its lap, and identify its weaknesses.
But then one warm day in late May, that NSA thing happened. Pieces of the trust I had tentatively reserved in the system were swiftly annihilated with every article I consumed.
It’s a terrible time to be studying law when the executive branches of “the developed world” can surreptitiously sidestep laws that supposedly govern everyone. It’s a terrible time to be studying law where there are secret courts that almost indiscriminately authorize wiretaps into our everyday communications. It’s a terrible time to be studying law where the evidence gathered this way is used in a prosecution with its methodology falsified, thereby weakening the defence’s right to make full answer and defence. It’s a terrible time to be studying law when government transparency and accountability has been proven absent time and time again. It’s a terrible time to be studying law when activists like Chelsea (formerly Bradley) Manning, Barrett Brown, and Edward Snowden face lifetime sentences in solitary confinement for attempting to create that transparency and accountability. It’s a terrible time to be studying law when everything that is supposed to be empowering about knowing how the law works is swept from under your feet.
It’s not just what Snowden has leaked either. On August 22nd, blogger Aditya Mukerjee posted an entry about his detention by TSA and FBI agents. Unfortunately, this sort of detention seems to be an expected protocol by most post-911 brown-skinned travellers by now. However, the most chilling aspect of the story isn’t the injustice of the detention and interrogation to which Mukerjee was subjected, nor is it the fact that TSA agents don’t seem to understand the difference between Muslims and Hindus. Rather it is what he reveals at the end of the post: during his detention at JFK, unknown persons had entered his New York apartment, which was evident from a religious photograph missing from his wall.
Cynics reading this might want to point out that all of these events concern the American government, not ours. But Snowden revealed that it was not only the American government that was spying on their citizens. The United Kingdom, Germany, New Zealand, and France were all doing it too. There is little reason to not suspect the Communications Security Establishment (CSE), NSA’s Canadian counterpart, isn’t also hiding its dirty laundry. In fact, Commissioner Robert Decary, a retired judge who oversees the CSE, has indicated that although there is reason to believe that the agency is spying on Canadians, he can’t be sure due to “poor record-keeping.” Previously, Defence Minister Peter MacKay had unequivocally denied that the government was spying on its citizens, which would be an affront to section 8 of the Charter. But President Obama essentially said the same thing and was proven wrong, so you can be the judge of those statements. It wouldn’t really be the first time a politician has lied to the people, something that seems to be the rule rather than the exception.
Am I right to be so disillusioned and disempowered? Maybe I’m being pessimistic. A less embittered person would say maybe this is the best time to be studying law. Be the generation to improve the system, triumph over corruption, and all that. But the more bites I take from the apple of knowledge, the less likely the possibility of doing that from within the system appears to be. And law school is all about teaching how to uphold the status quo. There are things the state is terrified of its people knowing, and there is proof that it will go to great lengths to prevent, denunciate, and punish those who try to flout their barriers to accessing that information.
As Andy Greenberg posits in This Machine Kills Secrets: How WikiLeakers, Cypherpunks, and Hacktivists Aim to Free the World’s Information, an exposé on whistleblowing in the post-WikiLeaks, hacktivist era, technology has made copying and sharing classified documents exponentially easier than back in the days of The Pentagon Papers, where Daniel Ellsberg had to manually photocopy an 8-foot tall document page-by-page. It’s important to remember that Chelsea Manning got caught not because she didn’t properly cover her tracks – it was her lapse in judgment when confiding in what she thought was a trusted source. A shrewder individual would most likely have avoided Manning’s fate. Cryptography has developed to a point where drug dealers can deal Schedule I narcotics openly on online black markets such as Silk Road without criminal repercussions thanks to the anonymizing aspects provided by new technologies such as the onion routing network (Tor). Senator Chuck Schumer has called Silk Road “the most brazen attempt to peddle drugs online that we have ever seen … by light-years.” This technology was fundamental to how WikiLeaks protected the sources of leaks such as Cablegate in 2010.
Greenberg predicts that information leaks of this type are inevitably on the rise. Despite their legality, I am becoming more and more convinced that they are better servants of justice than the law itself. Manning was sentenced to 35 years for exposing the vast misconduct of the American military to a population that deserved to know. There is something sick about a legal system that calls that justice.