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does not reveal the content of a conversation, themassive collection of metadata and its cross-linkingcan reveal much of the values, relationships andactivities of an individual. Experts argue that metadatacan provide the agency with a fairly accuratesnapshot of an individual user, but the governmentcontinues to deny that metadata collection violatesprivacy rights, playing on the dichotomy betweencontent and metadata to justify its programme andsideline privacy concerns. “Metadata is informationassociated with a telecommunication… and not acommunication,” stated a briefing note to the thenDefence Minister Peter McKay in 2011, right beforehe approved the ministerial directive on 21 November2011. 11According to CSEC governing legislation moreover,the programme is allegedly conducted underits foreign intelligence mandate and CSEC cannottarget Canadians or persons in Canada. On 29January 2014, following the airport Wi-Fi metadatacollection, the chief of CSEC, John Forster, arguedthat the agency’s activities are only directed “atforeign entities, and not at Canadians or anyonein Canada,” 12 although he later stressed thatCSEC “is legally authorized to collect and analyzemetadata.” 13Civil society actors and advocates for the privacyrights of Canadians, on the other hand, worrythat this and other operations led by CSEC lack publicaccountability or oversight and do not respectits mandate. Interviewed by the CBC, the provinceof Ontario’s Privacy Commissioner Ann Cavoukianstated that “this resembles the activities of a totalitarianstate, not a free and open society.” 14But civil society criticism of CSEC operationsis not new. In October 2013, the British ColumbiaCivil Liberties Association (BCCLA), a Canadian nonprofitadvocacy group, filed a lawsuit aimed at CSECfor “illegal search and seizure”, requesting that theagency stop certain surveillance activities. 15 The BC-CLA argued that the agency’s metadata collection11 Freeze, C. (2013, June 15). How Canada’s shadowy metadatagatheringprogram went awry. The Globe and Mail. www.theglobeandmail.com/news/national/how-canadasshadowy-metadata-gathering-program-went-awry/article12580225/?page=all12 Forster, J. (2014, January 29). Letter to the Editor re: Globe andMail editorial, January 29, 2014. Communications SecurityEstablishment Canada (CSEC). www.cse-cst.gc.ca/home-accueil/media/media-2014-01-29-eng.html13 CSE. (2014, January 30). CSE statement re: January 30 CBC story.Communications Security Establishment Canada (CSEC). www.cse-cst.gc.ca/home-accueil/media/media-2014-01-30-eng.html14 Weston, G. (2014). Op. cit.15 British Columbia Civil Liberties Association. (2013). Civil claimto the Attorney General of Canada, 22 October. bccla.org/wpcontent/uploads/2013/10/2013-10-22-Notice-of-Civil-Claim.pdfprogramme authorised by the minister revealedprivate information about Canadians or persons inCanada, which infringes Article 8 of the CanadianCharter of Rights and Freedoms, guarding againstunreasonable search and seizure. 16 OpenMedia, aCanadian advocacy group very active on internetand information and communications technology(ICT) policies, has also supported the BCCLA’s claimand launched a campaign against spying onCanadians. 17ConclusionThe metadata collection case raises many questionspertaining to privacy rights in Canada. First,it shows that CSEC activities are far more expansivethan previously believed. CSEC seems to becollecting metadata widely with the help of majortelecommunications companies. In Canada, publicagencies and private businesses have traditionallybeen subject to different privacy laws. The tighterprivacy laws governing the state were meant toprotect Canadians from pervasive surveillance. Butnow that information openly flows from one side tothe other without this being regulated by our privacylaws (as the government allegedly acquiredsome of the bulk data from telecommunicationscompanies without a legal warrant), it raises deepconcerns for accountability. In addition to this, theintroduction of new lawful access legislation givinglaw enforcement officials warrantless accessto private online information poses an even greaterthreat to democracy and civil liberties in Canada. Apositive note in this story is a recent judgment bythe Supreme Court that ruled the disclosure of privateonline information to government and policewithout a warrant was unconstitutional, making astep in the right direction for the protection of privacyrights in Canada. 18Secondly, the case described above highlightsthe inability of Canadian laws and regulations todeal with metadata. As Canadian technology policyanalyst Michael Geist has suggested, the fact thatthe government insists on the legality of the programmemight indicate that the problem lies inthe law itself rather than its application, as muchof the legal framework fails to acknowledge thebroader privacy implications of metadata. Thereare also considerable discrepancies in the definitionof “personal information” found in privacylaws governing the private and public sector, as16 Ibid.17 https://openmedia.ca/csec18 R. v. Spencer, 2014. scc-csc.lexum.com/scc-csc/scc-csc/en/item/14233/index.dowell as within federal and provincial privacy legislation.19 Furthermore, over the years, technologicaltransformations have weakened many of the barriersthat were used to protect the privacy rights ofCanadians and have rendered obsolete some privacylaws and regulations. Discussions surroundingthe legality of the metadata collection programmehave therefore been based on interpretation anddiffering views without having a clear legal frameworkto work from.A third area of concern is with the very mandatefor Canada’s spy agency. It has become increasinglydifficult to delineate the borders of a telecommunicationsnetwork based on national boundaries. Fromthis perspective, how can one guarantee that thiswidespread collection of metadata remains withinthe geographic boundaries of CSEC’s mandate?Action stepsThere have been several positive steps taken by differentlegislative bodies in Canada to reassert theprivacy rights of Canadians. The Senate StandingCommittee on National Security and Defence, forinstance, is examining CSEC’s programme and potentialareas of reform. Civil society groups, on theother hand, are leading campaigns that press forgreater protection of privacy rights and open debateon the limits of metadata collection and geography.In May 2014, a coalition of civil society groups andacademics released the Ottawa Statement, whichsets out recommendations aimed at putting a stop19 Lyon, D. (2014). Transparent Lives: Surveillance in Canada.Edmonton: Athabasca University.to government spying on innocent Canadians. 20 Butstill much remains to be done for protecting the privacyrights of Canadians, including:• Engaging in a full, transparent and participatorypublic process in order to ensure that lawsand regulations pertaining to privacy and theprotection of data are in compliance with theCanadian Charter of Rights and Freedoms andacknowledge the United Nations’ reaffirmationof privacy as a fundamental human right.• Cultivating a better understanding and considerationof the privacy implications of metadata,in particular the way massive collection andcross-linking of this information can revealmuch of the values, relationships and activitiesof an individual.• Ensuring greater oversight of the operationsof CSEC and other surveillance agencies inCanada.• Putting an immediate halt to plans for introducingfurther lawful access provisions thatwould allow for authorities to access metadatathrough telecommunications agencies withoutany warrant.• Strengthening the involvement of civil societyin favour of privacy rights through public campaigning,advocacy and education.20 OpenMedia.ca. (2014, May 22). Canada’s leading privacy expertsunite behind Ottawa Statement, offer high-level proposals to reinin mass surveillance. OpenMedia.ca. https://openmedia.ca/news/canada%E2%80%99s-leading-privacy-experts-unite-behindottawa-statement-offer-high-level-proposals-rein-mass100 / Global Information Society Watch canada / 101