The revelation that Canadians’ phone calls and Internet activity are being monitored by government officials in much the same fashion that Americans’ are is disturbing and unacceptable. Even more troubling is that the authority to carry out this surveillance came via ministerial directive, thus leaving Parliament out of the loop. The secret program should be halted until, at the very least, it can be debated in the House of Commons.
The surveillance program was first approved by a Liberal government in 2005 but then cancelled in 2008 when an internal watchdog raised troubling questions. Justice Charles Gonthier worried that the arm of the Department of National Defence that was collecting the data might share it with police departments or with CSIS, Canada’s spy agency. Such a practice, Mr. Gonthier pointed out, would amount to an end run around laws that require security and police officials to get a warrant before monitoring the private communications of an individual.
Despite these concerns, Defence Minister Peter MacKay quietly reinstated the program in 2011, using a ministerial decree to do so. As a result, the so-called metadata that are attached to every phone call and every Internet-based communication carried out by a Canadian are subject to collection and analysis by Communications Security Establishment Canada (CSEC) in the Department of National Defence.
As with the controversy unfolding in the United States, it is wrong to qualify this as eavesdropping. Canadian authorities are not listening in on phone calls or rooting around on the desktops of home computers. What they are doing is collecting a log of every phone call made, and of the activities associated with Internet Protocol addresses, in a search for patterns that might point toward a threat to national security. Many might find this a sensible procedure.
But just like the recently disclosed U.S. system, the Canadian program amounts to the constant surveillance of the communications of law-abiding citizens, and the usurping of the principle of probable cause. It is disingenuous to defend the program’s dragnet approach on the grounds that the government is only collecting a list of phone numbers: It would take no time at all for authorities to find the names attached. And as for the monitoring of IP addresses, Canadians rejected the wholesale collection of such data when public opinion killed Bill C-30, the Harper government’s bill on warrantless Internet monitoring, earlier this year.
Canadians and Americans have become aware in the past few days of the extent to which their governments have been monitoring their private communications under the rubric of fighting the war on terror. This greater awareness is a good thing, but it also reflects a troubling trend in which governments have been using their executive powers to change basic assumptions about our rights without bothering to consult us.
If the Canadian government wants the permission to monitor the metadata generated by our phone calls and Internet searches, Parliament must debate the level to which that is acceptable. Who can see the metadata? Under what circumstances can it be passed on to other agencies? How long can government agencies hold onto the data before deleting them? Is this even an effective way of fighting terrorism? And who watches the watcher? What agency will exist to counterbalance the desire to gather metadata with the rights of citizens? These are the questions that must be asked as soon as possible.