By Canadian Civil Liberties Association

As with the U.S. over-reliance upon private contractors to wage wars, in Canada, we too have fallen prey to mercenaries. Not soldiers of fortune on the battlefield — at least when a country retains private mercenaries, it’s done as a questionable means of fulfilling a mandate obtained from the elected. But what we’re doing of late in Canada is by-passing the elected, legislatures, city councils, voters. We’ve started governing through mercenaries, via an innocent-sounding mechanism called procurement — as uncovered, discovered and exposed by Bianca Wylie [1].



Under governance by mercenaries, no longer do governments put themselves through a controversial debate on health care or education policy regarding how to use students’ and patients’ data. That task gets outsourced to the “best” private sector bid, by way of a procurement policy that looks watertight on paper but usually gets savaged by a public auditor after it’s too late. This has been the global experience with national and subnational eHealth programs; in the justice sector with digitization projects; and with energy conservation programs. They all involve the Four Horsemen of an annual Public Auditor Apocalypse: technology, privacy, public service delivery and private procurement.

The concern here, as you’d expect from a civil liberties organization, is not the same as an auditor’s. In fact, the spending scandals mask the more pernicious public wrong of governing by mercenary. Our chief concern at CCLA is not about the money. We care about privacy, due process (data collected and used against a defendant by police without a warrant), data rights infringements involving civil liberties (eg., racial profiling by justice officials), the rule of law and democratic rights (the vacuum caused by silent legislatures gets filled by surveillance capitalism). That a poor bargain for the taxpayers was struck is an age-old political story in Canada, dating back to the building of our railway. Our concern is how mercenaries subvert our constitution.

The constitutional problem that arises with outsourcing the public interest is manifold but it’s akin to a government retaining Exxon to design a jurisdiction’s energy policy — will electricity generation be primarily carbon-based or green? How much nuclear capacity? Will there be conservation incentives for users? Will transmission and distribution be administered publicly or privately? How does the Crown fulfil its fiduciary duty to indigenous peoples? When governments leave those matters to be decided by Exxon, it has replaced its legislature with a mercenary.

For example, rather than forcing provincial and local politicians to explain what is to be done with my public school childs’ personal data, Canada’s largest school board simply procured Google, trusting them to manage the privacy and data rights of our children. The same approach was taken in the UK and across Europe with eHealth policies. And in Toronto, it’s happening with the Quayside “smart city” project.

Instead of debating, say a data and privacy policy in Cabinet or municipal government, then pitching it through the media, debating it in the legislature, voting on it, recording that vote for the next election, then entrenching it in statute and regulations; instead of all that (aka democracy), governance through mercenaries is the opposite. The mercenary just gets the job done, and gets paid. There is no vote, no debate, no statute, no regulation, no accountability. There are also new obstacles placed in the way of an NGO like ours to review whatever the mercenary does because, after all, Google is not a public institution.

This business — and that’s all procurement is, after all — creeps into our lives and by-passes democracy particularly in those sectors where the politicians themselves feel incompetent, especially if it involves technology. So the partnering of Waterfront Toronto and Sidewalk Labs, a Google subsidiary, was a mercenary match made in heaven for the three levels of government that showed up for a public back-patting session in 2017.

The problem is that mercenaries are, by definition, in it for the money, doing a job that a government is unwilling or unable to get done itself. Because political scandals of megaprojects tend to follow the money, through the public auditor, governments delegate the financial management, and public accountability for that management, to the alleged experts: the private sector. That’s all fine and dandy. But the qualitative decisions, the policies themselves, the way the project impacts our human dignity and civil liberties, that activity is supposed to be the function of a democracy. Instead, the politicians can duck democracy altogether if they outsource those decisions to the mercenary. And when anyone questions whether this is constitutionally kosher, the government bootstraps its defence by pointing to its lawyered-up procurement process. In politics, we call that wagging the dog.

So what? Is governance by mercenary just some obscure lament about process? Yes, and so was the Boston Tea Party. Unlike colonial rule, however, where the indigenous are oppressed by a far-off monarchy, governing by mercenary sees Wall Street as our new sovereign. The covenant between voter and parliament is replaced with a fiduciary duty owed by a corporation to its shareholders to maximize profit.

The irony is that the show the mercenaries put on is better than what registered political parties pull off during an election. There is so much razzle-dazzle to no end, no election, no vote, no accountability. There is no democratic moment therein. Just a glorious PR phantasma, somehow making movie studio campaigns for Oscars look profound, because after all eventually the Academy, whoever they are, votes. With the Sidewalk Labs shuffle, policy affecting our civil liberties gets made, to be sure, but with zero opportunity to hold a publicly elected official to account.

A glimpse of the Greatest (Undemocratic) Show on Earth can be found on their hypnotizing website page Get Involved. “Public Talks … Roundtables … Neighbourhood Meetings” galore. Baubles and trinkets and jargonized goodies like “Pop-up Stations” and “Sidewalk Toronto Workshop: 307” (just like “30 Rock”!) and “Design Jams” and “Civic Labs” and holy cow! A “36-member group of volunteer residents from across the city” deemed the “Sidewalk Labs Reference Panel” meeting over “six Saturdays”! (waaa? That’s like … a lot of meetings, no? Who needs a legislature!?) and some elitist authoritarian stuff if that’s your thing — “Local and International Experts” (who needs a Royal Commission? — and hella heavy graphics “Demos and Prototypes” and a brainy peace corps — “Fellows Program” (who needs a Fulbright Fellowship or a Rhodes Scholarship?) and since corporations can’t kiss babies, a Summer Kids Camp partnered with a trusted charity brand (Google giving back!) and, just to sweeten the pot for potential critics: a “Small Grants Program” (a shout-out to Joey Smallwood, Duplessis and Tammany Hall). So why not Mirvish’s Sidewalk Lab: The Musical?

But no matter expert their communications products, no matter how glowing their brand, no matter how many halos they rent, corporations are required, by law, to fulfil a fiduciary duty — not a public duty to voters, but a private duty to shareholders to maximize value. Look at the document that Sidewalk Labs’ parent company is required by law to disclose to shareholders. It mentions the word “value” over 70 times. There are zero references to ‘public interest’ or any variant. Because this is a business; not a government department or even a charity or NFP. Maximizing shareholder value is always done at the expense of … well, everything else but profit. The only legal accountability in a mercenary relationship is owed by the company to its shareholders: they are in it for the money [2].

Governments, on the other hand, are in it for the people. Ok, stop giggling. Maybe the motivation is a narcissistic lust for power and misguided fantasy about post-political fame, riches and glory. But throughout our history, the only legal duty held by elected office holders is a public duty. It is literally a crime in Canada for politicians or civil servants to violate that public trust for private gain. There are a plethora of ethics watchdogs, journalists and opposition politicians digging for missteps by governments. Legal access to public information, however flawed, is a given. If the people don’t like what the elected are doing, they throw them out.

That’s not what happened when Waterfront Toronto procured the services of Sidewalk Labs to design and implement a “smart” neighbourhood at Quayside in Toronto. This project doesn’t just privatize city infrastructure development, but also the policies to govern the technologies embedded in that infrastructure, and the data that tech will collect. At least when Hydro One was privatized, there was a debate and vote in the legislature, resulting in laws and regulations. Some voted against the Wynne Government for that decision. Not so for whatever is happening with our private data on the streets of Toronto. That’s all in the hands of the mercenaries.

Which politician do you call if you want to find out the masterplan on data management and privacy in the Quayside neighbourhood, or what happens to your information if you live or even visit there? The answer is none; our democratically elected representatives are not in charge. No one gets the heave-ho if this thing gets messed up because no one driving the deal is directly accountable to the public. Unless you’re a shareholder, you don’t get a say on this matter. That’s all in the hands of the mercenaries.

In their boardrooms, filled with MBAs, lawyers, accountants, analysts, marketing professionals, and sales force leaders, the mercenaries are cooking up what’s to be done with your data. Soon they’ll release their sanitized version of their (profitable) plan, likely to be so technical and voluminous that nobody but they understand it, after which they, the mercenaries, will decide how to exploit stuff about you for their financial gain.

When did this happen? You missed it. Google’s parent company purchased the keys to our privacy kingdom for a song. Because Waterfront Toronto, the singular legal creature that is accountable to nobody, by law, was in over their heads and got bamboozled by Google negotiators, who brokered a deal that may be undemocratic, unconstitutional, impenetrable, contrary to the public interest, but by god, it will be profitable.

Mercenaries are not known for acting in the public interest. If they were, they wouldn’t be called mercenaries. They know how to profit. If they’re trying to sound progressive, like Sidewalk Labs, they’ll emphasize long-term profit. But they don’t know how to manage a policy that is in the public interest, neither delegates nor trustees they be. They know how to manage a portfolio of companies, like Alphabet Inc., with a view to high risk, high-value return to shareholders. They have zero instincts when it comes to things like public trust, constitutional values and civil liberties. They know how to profit. They are infamously economical with the truth. They don’t talk about ‘truth,’ in fact. They talk about compliance.

Corporate mercenaries are supposed to be shrewd, competitive, successful, winners, capable of selling me the shirt off my back. Today we tend to romanticize morally bankrupt but financially profitable behaviour. So, you ask, why not get those crackerjacks from Google on this job?

The answer is that those crackerjacks don’t answer to you and me. They’re in it for the money. They already sell the most private, unspeakable information about you, stuff you’d never share with anyone, stuff you’d lock in a diary if that was your thing, selling that info to the highest bidder as if you were a heifer in a cattle call. Now they want to move that data collection offline and onto Toronto’s city streets. And while it’s true that they haven’t done much yet (a point made by a recent Toronto Star editorial suggesting privacy concerns have been overstated), that’s not the point. The point is that once we hand over city building and policy-making to mercenaries, we are going to get cities that profit mercenaries, and policies that we cannot trust because the policy-makers are mercenaries. If it sounds circular, that’s because it is.

That’s the problem with mercenaries. Human dignity is not their forté. Governments and legislatures are invariably maligned and mistrusted, but we prefer them to mercenaries like we prefer even the fallible Mounties to mall cops.

Do you really trust your constitutional rights to equality, free speech, free association, privacy and liberty to a bunch of mercenaries? That’s for you to answer, but typically citizens prefer having a say in what happens to their stuff. And the only way to have a say is to run it all through a democracy, or at least do that before we hand it all over to the mercenaries. As it is, we may be getting snookered.

Canadian Civil Liberties Association

media@ccla.org

[1] See B. Wylie: “The TTC’s Problematic $500,000 Software License Shows Why Procurement Matters” https://torontoist.com/2017/10/civic-tech-ttcs-problematic-500000-software-license-shows-procurement-matters/, “Smart Communities Need Smart Governance” https://www.theglobeandmail.com/opinion/smart-communities-need-smart-governance/article37218398/, “Governance Vacuums and How Code is Becoming Law” https://www.cigionline.org/articles/governance-vacuums-and-how-code-becoming-law, “Sidewalk Toronto, Procurement Innovation, and Permission to Fail,” https://tinyurl.com/y7nly5mz, for more see: https://biancawylie.com/.

[2] The IPO letter from Google in 2004 was full of promises to not “be evil” but also confirmed their legal duties to shareholders: “We will support selected high-risk, high-reward projects and manage our portfolio of projects.… We are conscious of our duty as fiduciaries for our shareholders, and we will fulfil those responsibilities.” https://abc.xyz/investor/founders-letters/2004-ipo-letter/

For more from CCLA on this subject, start here:

https://ccla.org/focus-areas/fundamental-freedoms/internet-privacy-and-speech/