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Page 6 JUNe 1, 2015 • LAW TIMES www.lawtimesnews.com COMMENT another affront to democracy L est anyone think disregard for democratic practices is the exclusive purview of the federal government, the province has also shown itself willing to slip offensive provisions into budget legislation. Last week, Law Times expressed outrage over the federal govern- ment's insertion of retroactive changes to the Ending the Long-gun Registry Act into its budget implementation legislation. The changes would oust the application of the Access to Information Act retro- active to Oct. 25, 2011, and include a provision that would shield officials from liability for destroying records after the government passed legislation in 2012 ending the controversial gun registry. The provincial government, meanwhile, has also landed in hot water for changes to the rules against partisan advertising. Critics say the changes will gut a law hailed as a welcome bar against spend- ing public money on ads promoting the party in power. While the auditor general currently has wide discretion to put a stop to ads promoting the political interests of the party in power, the changes would deem an ad to be partisan only if it contains the name, voice or image of an elected MPP; the name or logo of a recognized party in the legislature; or a colour associated with the governing party "to a significant degree," according to auditor general Bonnie Lysyk. Last week, according to the Toronto Star, the government added a provi- sion to ban ads that directly identify and criticize a party or MPP. Government minimizes privacy implications of metadata snooping T here wasn't an empty chair in the 12th-f loor hall of the Desmarais building at the University of Ot- tawa last month. The annual public law conference or- ganized by the university's law faculty 10 days ago filled the place with a cast of some of the country's brightest legal minds. Former Supreme Court justice Frank Iacobucci was the keynote speaker, wax- ing eloquently at length about the federal government and the law. But it was one of the university's own faculty members, Prof. Michael Geist, who stole the show with a tirade against the fed- eral government and the Canadian people for not protecting their privacy. The message was clear: surveillance by spy agencies is turning us all into victims. Back in the 20th century, it was all about agencies listening in on our conver- sations or reading our mail, he said. Now they track where we're calling and who's sending us e-mail messages. Geist noted governments are collecting metadata that excludes the content of what we send each other but includes all of the details surrounding our messages. About 95 per cent of the time, they can tell who's calling whom and what they're likely talking about without intercepting to the content of the message. Geist told the audience how it all began. Back in 2007, John Adams, then chief of the Communications Security Establishment, explained to a Senate committee on national security how he could inter- cept communications with- out breaking the law. "What is your interpreta- tion of an intercept?" some- one asked him. Adams replied: "If you asked me, it would be if I heard someone talking to someone else or if I read someone's writ- ing. That is an intercept to me." Then Adams delivered his killer line: "An intercept would not be to look on the outside of the envelope. That is not an intercept to me." Geist told the audience the notion of "outside the envelope" was a spy reference to what the Americans have been calling metadata that in some cases can involve a whole lot more of an invasion of privacy than actually opening a letter or reading an e-mail. Many Canadians erroneously believe that intercepting metadata isn't as much of an invasion of someone's privacy as intercepting the contents of a message without authorization by a judge. The Americans affix a different value to the metadata in their in- tercept cases. Geist said that Michael Hayden, a former CIA and National Security Agency di- rector, once admitted to a con- gressional committee: "We kill people based on metadata." There's no evidence of that happening here. There are sig- nificant concerns, however. Stewart Baker, a former lawyer for the National Security Agency, once declared: "Metadata absolutely tells you everything about somebody's life. If you have enough metadata, you don't need content." It might be a bit of an exaggeration, but capturing the details of data transmissions can tell spy agencies a lot about someone's political affiliation, religious practice, and intimate sexual details, according to Geist. The problem in Canada is that when questioned about metadata collection, government officials have dismissed it as "relatively insignificant" and keep trying to play down how much personal infor- mation about citizens our government is picking up through the laxity in the law. The Canadian approach has been to minimize the threat to individual privacy when agencies are collecting metadata. The federal government even tried to create a specific warrant with a lower threshold for law enforcement agencies seeking to obtain a metadata operation warrant from a judge. The government must still obtain a warrant. While the government may not have succeeded in its efforts, take a look at Bill C-13, the cyber-bullying law passed by Parliament without requiring a higher level of approval from a judge despite the invasion of privacy involved in snooping into someone's data transmission. Our government appears to be mini- mizing the importance of guarding and protecting people's privacy when it comes to metadata operations by law enforce- ment agencies. In concluding his talk, Geist suggested that "with a broad-based ministerial au- thorization on metadata collection seem- ingly establishing few limits, the metadata program now represents one of the most significant privacy-related concerns with Canadian surveillance practices." Some of the government lawyers in the audience winced. LT uRichard Cleroux is a freelance reporter and columnist on Parliament Hill. His e- mail address is richardcleroux@rogers. com. ©2015 Thomson Reuters Canada Ltd. All rights reserved. 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One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 • Tel: 416-298-5141 • Fax: 416-649-7870 www.lawtimesnews.com • LT.Editor@thomsonreuters.com • @lawtimes • LT.Editor@thomsonreuters.com • @lawtimes u Editorial obitEr By Glenn Kauth It's clear the changes significantly dilute the in- tent of former premier Dalton McGuinty's attempt to put a stop to excessively partisan ads put out by the previous government. The province may have some legitimate concern about the broadness of the current rules, but the proposed changes are far too narrow by focusing so much on identifying names. What's most offensive about the situation is the use once again of budget legislation to bring in such changes. These aren't budgetary matters any more than the retroactive gun-registry provisions. While the federal government's actions are argu- ably more offensive, both it and the province are wrong to sneak actions affecting our democratic life into their budget laws. — Glenn Kauth The Hill Richard Cleroux

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