Home > cdnpoli, CSEC, Digital Policy, Politics, Privacy > Collection of Meta Data May Be Legal, But Is It Constitutional?

Collection of Meta Data May Be Legal, But Is It Constitutional?


(Copy of George Orwell’s 1984 signed by John Forster head of CSEC and Michel Coloumbe head of CSIS after yesterday’s testimony before Canadian Senators.  Credit: Jake Wright )

Many times those following breaking events feel as though they were commanders in a informational war room.  For me yesterday while listening to Canadian top spies getting “politely” grilled by the Senate was one of those days for me.  I was watching events unfold in three twitter hash tags, flipping back and forth between 2 news stations, watching google news for developments, watching my RSS feeds for blogger comments, listening to the committee floor audio, and most of all analyzing all this information surrounding yesterdays events at the Senate committee to come up with important points.

The most important thing that came out of developments yesterday was the assertion of Canadians top spies that meta data collection is legal.  The most important take away I got from yesterdays developments came from an interview on CTV’s Kevin Newman live from Christopher Parsons who is a post doctorate fellow for the Citizen’s lab.  When Newman poised the question on whether CSEC’s activities on spying and collecting meta data from Canadians was legal, Parsons replied “It may be legal, but is it constitutional?”

Currently there is no law in respect to meta data collection, so “technically” it is legal as a result.  There’s a lot of lawyering going on by the Government on the language used to mislead Canadians that it’s perfectly fine meta data is being collected and used without a warrant.  Parsons hit back with a counter to that lawyering by calling into question the constitutionality of this collection.  The collection of such information can not be deemed legal by the Conservative party of Canada.  This can only be done by our court system when this collection of data is pitted against our constitutional rights.  Just because there are no laws that prohibit this collection of data doesn’t mean it is constitutional thus legal.

During the hearings, there was a lot of attention on what meta data contains.  All the spies testifying before the senate committee had stated that it’s data about data.  If we are to look at the Canadian Supreme Court interpretation of meta data, the spies got it wrong.

The Supreme Court has already weighed in on meta data usage:


Research demonstrates that transmission data – now commonly described as metadata – has significant privacy implications. While the government may argue that the “substance, meaning or purpose of the communication” is excluded from the warrant, metadata alone can still be incredibly revealing. Last month, the Supreme Court of Canada ruled in R. v. Vu on the privacy importance of computer generated metadata, noting:

most browsers used to surf the Internet are programmed to automatically retain information about the websites the user has visited in recent weeks and the search terms that were employed to access those websites. Ordinarily, this information can help a user retrace his or her cybernetic steps. In the context of a criminal investigation, however, it can also enable investigators to access intimate details about a user’s interests, habits, and identity, drawing on a record that the user created unwittingly: O. S. Kerr, “Searches and Seizures in a Digital World” (2005), 119 Harv. L. Rev. 531, at pp. 542-43. This kind of information has no analogue in the physical world in which other types of receptacles are found.

Essentially the supreme court has already acknowledged this information contains more data then just “data about data”, and also confirmed that there are no laws against the collection of such data.  There is no legal basis for which the government to make the case to Canadians that warrent-less collection of meta data is legal.  Essentially they can’t prove it’s legal, because there are no laws around it.

If in 2014 we have the heads of Canadian spy agencies who are quite happily signing copies of Owell’s 1984, than we quite obviously have significant problems with current political ideology around what a democracy should look like.  I find that extremely surprising and disappointing coming from Conservatives, who’s main objective when first elected was to strengthen democracy, and limit governments power.  One would have expected responsible and strong leadership, not advocating against democratic values with a totalitarian ideology surrounding the most senior of government officials who receive their orders directly from Prime Minister Harper and his Ministers.

I’m beginning to see why former Prime Minister Joe Clark in the early days of joining the Reform and PC Parties together, came out of the first new Conservative Party caucus meeting, shook his head and said “scary” when asked what he thought.  Clark shortly after retired from politics. This is definitely a party that has strayed not only from it’s roots, but basic fundamental ideology of democracy instilled in the party by the party’s founder Sir John A MacDonald.

  1. No comments yet.
  1. February 13, 2014 at 3:02 AM

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s

%d bloggers like this: