Law Times

lAw Times • April 14, 2014 Page 9 www.lawtimesnews.com FOCUS 2014 COMPENSATION SURVEY law departments grow. partnerships evolve, change, Salaries canadianlawyermag.com/surveys Managing partners and law department leaders, share what's happening in your organization. Survey closes May 5, 2014 Untitled-4 1 14-04-02 2:40 PM ecent allegations that the Communications Se- curity Establishment Canada has been tracking Canadians through free Wi-Fi networks and swapping information with foreign governments have focused the ongoing Internet privacy debate on the collection of metadata. Proposals for parliamentary over- sight and the inclusion of metadata in privacy legislation are now on the table in the hope of protecting Canadians from illegal monitoring. Metadata is data that describes the contents and con- text of data fi les. Far from being benign and anonymous, this so-called data about data may be extremely personal in nature. In fact, metadata can reveal a trove of informa- tion, including the location and numbers of all calls, texts or e-mails a person makes and receives. It doesn't include the content of the communication, something that would require a warrant to intercept. Stephen McCammon, legal counsel for the Ontario offi ce of the information and privacy commissioner, be- lieves metadata can be more revealing than listening to calls or reading e-mails. e federal privacy commission- er agrees. In a special report to Parliament in late January regarding privacy protection and oversight for the Ca- nadian intelligence community, the federal offi ce noted: " e very exchange of personal information itself gener- ates still more personal information through profi les and metadata. Specifi cally, online communications create data trails that can paint a detailed picture of individuals." e issue fi rst attracted broad public attention in 2013 when former National Security Agency contractor Ed- ward Snowden exposed dozens of wide-ranging intelli- gence collection programs underway in several countries with concerns in Canada centring on a Communications Security Establishment Canada airport sweep. "I understand it was a trial of technology for tracking individuals, basically picking them up at the airport and following them," says David Fewer of the Canadian Inter- net Policy and Public Interest Clinic. " e CSEC said it was not personal information. We disagree wholeheart- edly with that view. ere are enormous privacy implica- tions of the highest order. We need law enforcement and national security organizations to act more responsibly." Fewer sees it as a small example of a much bigger issue with respect to security institutions. "Plainly, we are in the early stages of calibrating what behaviour is appropriate to protect a free and democratic society." McCammon sees the issue as a global problem. "All the security organizations struggle with having good people who are committed to national security, but their interpretation of what is appropriate is occurring inside a hothouse. ere is not enough sunshine and fresh air getting in. Security is important, but privacy and other fundamental rights have to be respected." He notes civil liberty groups, the judiciary, and legisla- tors are all trying to play catch-up on the issue. " ere is a need for vigorous public debate. Our offi ce has been speak- ing out for some time that this data is inherently private." One of the questions now arising is whether pri- vacy legislation should specifi cally classify meta- data as personal information. Fewer doesn't think so. "In Canada, we don't need that. e privacy commissioners are absolutely clear that metadata can be personal information of an identifi able in- dividual. You can't just strip the name and render it non-personal. Anonymous information can still be personal information under the legislation." e problem appears to lie in the larger regime that regulates intelligence bodies. " e body of law that bears on the privacy interest in metadata is not confi ned to privacy legislation," says McCammon. "It alone does not regulate law enforcement and secu- rity organizations," he adds, noting other factors include the Criminal Code and the National Defence Act. In his opinion, the government must cla- rify the law to ensure intelligence surveil- lance is subject to ju- dicial supervision as is the case with pri- vate conversations under the Criminal Code. " e short- coming of the current understanding and emerging practices is that a wide range of enforcement and security organizations treat metadata as if it doesn't attract much expectation of privacy." Fewer believes judicial intervention will be necessary before there's any change in practice. He refers to the Re X decision of the Federal Court last year in w hich Justice Richard Mosley initially granted the warrants sought under the Canadian Security Intelligence Service Act to monitor foreign telecommunications. A er the Snowden revelations, the judge rescinded his decision, noting the Canadian Security Intelligence Service had "strategically omitted information in applications for the warrants about their intention to seek the assistance of the foreign partners." e revised decision is under appeal. e B.C. Civil Liberties Association has launched two lawsuits against CSEC claiming its secret and unchecked surveillance of Canadians violates the protections under the Charter of Rights and Freedoms against unreasonable search and seizure. e Supreme Court is consider- ing the issue in R. v. Matthew David Spencer. It canvassed whether a sub- set of metadata, namely subscriber information, attracts a reasonable expectation of privacy under s. 8 of the Charter. McCammon wonders whether Par- liament will get ahead of the game by redesigning the security sys- tem. ere are also calls for stronger oversight to ensure privacy protection in the context of national security. e con- cerns come as the special report from the federal privacy commissioner noted formerly solitary intelligence organi- zations were increas- ingly co-operating and merging without any commensurate ability for joint oversight eff orts by their review bodies. McCammon thinks the problem lies at the heart of the National Defence Act. "It was an interim measure, now 10 years old, that was brought in quickly in the weeks that fol- lowed 9/11. It le a lot of unanswered questions about the scope of its powers. CSEC commissioners have, to a man, raised alarms that it puts at risk the integrity of the review process, but the government is yet to respond." ose following the issue expect the matter will defi - nitely get some attention this year. "Privacy commissioners and civil societies are pushing for an open debate and some members of Parliament are picking up on that," says Mc- Cammon. " ere are lawsuits coming up and we can count on more news from Edward Snowden. at's almost certain. e temperature will go up and pressure for a proper re- alignment over power and transparency will increase." LT Snowden leaks create pressure for security reform Metadata among concerns as advocates seek greater oversight BY JuDY VAn RHIJn For Law Times R One of the questions now arising is whether pri- vacy legislation should specifi cally classify meta- data as personal information. Fewer doesn't "In Canada, we don't need that. e privacy commissioners are absolutely clear that metadata can be personal information of an identifi able in- dividual. You can't just strip the name and render it non-personal. Anonymous information can still be personal information under the legislation." e problem appears to lie in the larger regime that regulates intelligence bodies. " e body of law that bears on the privacy interest in metadata is not confi ned to privacy legislation," says "It alone does not regulate law enforcement and secu- rity organizations," he adds, noting other factors include the Criminal Code and the In his opinion, the surveillance of Canadians violates the protections under the Charter of Rights and Freedoms against unreasonable search and seizure. e Supreme Court is consider- ing the issue in Spencer. It canvassed whether a sub- set of metadata, namely subscriber information, attracts a reasonable expectation of privacy under s. 8 of the Charter. McCammon wonders whether Par- liament will get ahead of the game by redesigning the security sys- tem. ere are also calls merging without any commensurate ability for 'Plainly, we are in the early stages of calibrating what behaviour is appropriate to protect a free and democratic society,' says David Fewer. 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