Law, Logarithms and Liberties: Legal Issues Arising from CSEC's Metadata Collection Initiatives

Michael Geist (ed) Law, Privacy and Surveillance in Canada in the Post-Snowden Era (University of Ottawa Press, 2015)

34 Pages Posted: 15 May 2014 Last revised: 27 Aug 2015

Craig Forcese

University of Ottawa - Common Law Section

Date Written: March 1, 2015

Abstract

Two thousand and thirteen was the year of the spy. Edward Snowden – “leaker” or “whistleblower” depending on one’s perspective – ignited a mainstream (and social) media frenzy in mid-2013 by sharing details of classified US National Security Agency (NSA) surveillance programs with the U.K. Guardian and Washington Post newspapers. For related reasons, 2013 was also the year in which the expression “metadata” migrated from the lexicon of the technologically literate to the parlance of everyday commentary. The NSA revelations fuelled media, academic and other speculation about whether similar surveillance programs exist in Canada. That attention focused on Canada’s NSA equivalent (and close alliance partner), the Communications Security Establishment Canada (CSEC). CSEC does have a metadata collection program, prompting questions about its legal basis, and the extent to which CSEC is governed by robust accountability mechanisms. This article focuses on a single aspect of this debate: By reason of technological change and capacity, have the state’s surveillance activities now escaped governance by law? A broad question with a number of facets, this article examines the specific sub-issue of metadata and its relationship with conventional rules on searches and seizures. The article concludes that the privacy standards that CSEC must meet in relation to metadata are much more robust than the government seems to have accepted to date.

Keywords: metadata, surveillance, intelligence, sigint, spying, Canada, law, lawful access, national security

JEL Classification: K19

Suggested Citation

Forcese, Craig, Law, Logarithms and Liberties: Legal Issues Arising from CSEC's Metadata Collection Initiatives (March 1, 2015). Michael Geist (ed) Law, Privacy and Surveillance in Canada in the Post-Snowden Era (University of Ottawa Press, 2015). Available at SSRN: https://ssrn.com/abstract=2436615 or http://dx.doi.org/10.2139/ssrn.2436615

Craig Forcese (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

HOME PAGE: http://www.cforcese.ca

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