• Tech Law McGill

Will Canada be a Global Leader for Ethical Technology Exports?

This article was written by Hanife Masoomifar, 1L.

As technology advances, we often find the agreements and institutions which have governed state action are slow to keep up with the rate of change. Canada is party to the Wassenaar Arrangement (WA), a voluntary agreement with 42 countries to increase “transparency and greater responsibility in transfers of conventional arms and dual-use goods and technologies, thus preventing destabilizing accumulations”[1]. In layman’s terms, the WA is an international agreement where its signatories agree not to export weapons and technology to bad state actors.

There are several goods and technologies which can be used for both civilian and military purposes. These are known as dual-use products. If sold to the wrong actor, they may be used for suppression and persecution. The WA regularly updates its “List of Dual-Use Goods and Technologies” at least once a year and Canada updates its export controls to reflect these restrictions in the Export and Import Permits Act (EIPA).

However, there are gaps in WA’s coverage of dual-use goods as it only applies to technologies in categories and not applicable to the end-use of the product. This allows for technology that can be utilized for hacking and surveillance to be exported to bad state actors. In addition to the gaps surrounding identifying what dual-use goods can be weaponized, there are shortcomings concerning the enforcement of the WA, as the US does not normally enforce the WA if it will impede on their economic interests[2].

In 2018, the Citizen Lab at the University of Toronto’s Munk School of Global Affairs described how a Canadian and American-based company, Sandvine, was producing and operating networking equipment for governments in the Middle East[3]. This technology was actively redirecting users to third-party spyware and blocking access to websites such as Human Rights Watch, Al Jazeera, and Wikipedia among others. Because this is networking technology, it does not fall under the technology categories that are restricted under the WA.

In June 2018, the Standing Senate Committee on Human Rights published their report “Promoting Human Rights: Canada’s Approach to its Export Sector”. The focus of the report was clear, how can Canada improve our legislation and regulations to ensure that products exported from Canada do not contribute to human rights violations[4]. Recommendation 5 in the report sought amendments to the EIPA, so that the “focus of such controls should be on the end-uses and end-users, rather than on categories of technology”[5].

In her response to the report, Foreign Minister Chrystia Freeland wrote that unilateral action by Canada to restrict these exports could “limit the impact we can have in protecting international human rights and humanitarian law while putting legitimate Canadian exporters at a significant competitive disadvantage”[6]. In laying out the fact that Canada isn’t going to do anything on this issue unless there is an international consensus, forces us to turn to the WA.

During the 2019 Canadian Election, the Liberal Party of Canada vowed in its foreign policy platform to “take a leadership role in ensuring the ethical use of new technology”. Placing the onus of restriction on the actual end-use of the technology would allow the WA to keep up with the technology of the 21st century. Now that the Liberals have formed a government with minority status, we should keep an eye on the mandate letter of the upcoming Foreign Minister. A leadership role could entail implementing this proposed change, so perhaps the Canadian government can keep an eye to the future and contribute to protecting the internet freedom of people around the globe. That would be real global leadership.

[1]Wassenaar Arrangement, “About us” (October 27 2019), online: Wassenaar Arrangement <https://www.wassenaar.org/about-us/>. [2] Neil Desai, “Are Canada's Military Export Control Policies Being Decided in Washington?” (7 April 2016), online: Policy Options <https://policyoptions.irpp.org/magazines/april-2016/are-canadas-military-export-control-policies-being-decided-in-washington/>. [3] Bill Marczak et al.,“BAD TRAFFIC: Sandvine's PacketLogic Devices Used to Deploy Government Spyware in Turkey and Redirect Egyptian Users to Affiliate Ads?” (13 April 2018), online: The Citizen Lab <www.citizenlab.ca/2018/03/bad-traffic-sandvines-packetlogic-devices-deploy-government-spyware-turkey-syria>. [4] Senate of Canada, Promoting Human Rights: Canada's Approach to Its Export Sector: Report of the Standing Senate Committee on Human Rights (June 2018) (Chair: the Honourable Wanda Bernard) at 12. [5] Ibid at 32. [6] Canada, Minister of Foreign Affairs Chrystia Freeland, Response to ‘Promoting Human Rights: Canada's Approach to Its Export Sector’, (Received by Standing Senate Committee on Human Rights on 2 Nov. 2018).

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