By Thomas Walkom
The Toronto Star
Yes, they are following us. All of us.
And no, they don’t plan to stop.
That’s the take-away from the ever-so-polite questioning of Canada’s top spymasters by a Senate committee Monday.
For the public, it was a rare chance to see legislators quiz the who’s who of spookdom: Communications Security Establishment Canada chief John Forster, Canadian Security Intelligence Service director Michel Coulombe and Prime Minister Stephen Harper’s national security adviser, Stephen Rigby.
But with rare exceptions, the tone of the questioning was agonizingly deferential even as the spy chiefs acknowledged that they feel free to monitor the email and cellphone traffic of all Canadians and, in an unspecified number of cases, are doing exactly that.
The witnesses were asked about a CBC report, citing U.S. whistleblower Edward Snowden, which said CSEC had somehow managed to electronically track ordinary passengers going through a major Canadian airport. Was it true?
Yes, admitted Forster. But it was just an experiment designed to create an “algorithm” that would allow CSEC to do something similar in the future — which, he said, it did (twice).
In any case, he went on, it was only “metadata” that the spies were monitoring — such as whom the travellers were contacting. Agents didn’t listen in on any actual conversations.
No problem. Right?
First, as Ontario information and privacy commissioner Ann Cavoukian points out, so-called metadata contains detailed information about individuals.
In a July report, Cavoukian said metadata snooping allows the security forces to determine who people live with, how many children they have, where they work, what food they eat and which political parties they support.
It can, she wrote, “facilitate the state’s power to instantaneously create a detailed digital profile of the life of anyone swept up.”
History, she went on, shows that such attacks on privacy precede “injustice and tyranny.” She cited Germany’s 20th century past.
Second, the security forces seem determined to continue collecting metadata on Canadians. Both Rigby and Forster argued that it is allowed under law (Cavoukian disagrees).
Like the U.S. National Security Agency, CSEC is supposed to “direct” its activities only towards foreigners living outside the country. But the Canadian agency may also — in some circumstances — eavesdrop on the private telephone calls or electronic communications of citizens.
If so, CSEC must, by law, jump through some hoops.
But Forster told senators that the spy agency, and the retired judge who oversees it, believe that metadata monitoring falls outside even these strictures and that in this area CSEC’s authority is far less constrained.
He also noted that successive Liberal and Conservative defence ministers have authorized metadata snooping.
Third, the government is not straightforward about this. Last Friday in the Commons, Defence Minister Rob Nicholson said that no Canadians have been tracked by CSEC.
By Monday, Nicholson was saying that CSEC’s metadata tracking activities are “compatible with the law.”
Fourth, there are no easy fixes. The opposition Liberals want security agencies made subject to a parliamentary oversight committee of specially vetted MPs.
But the U.S. experience demonstrates how easy it is for legislators to be co-opted.
American oversight committees were told of the extent of NSA spying. But they said and did nothing. It took whistleblower Snowden to bring it to the public’s attention.
Fifth, language is important. The spy agency may say it is not “targeting” Canadian “communications.” But that doesn’t mean it is not electronically collecting information on Canadians.
I talked to Cavoukian Tuesday afternoon. She was outraged that Canada’s spymasters are, without reasonable cause, blithely scooping up so much private information about Canadians. She was amazed that so many politicians are so blasé about the practice.
She hopes someone will take CSEC to court.
“The same fictions are being perpetrated,” she said. “CSEC can’t just keep on saying: Trust us.”