I hear some heckling on the other side from junior members of Parliament, who may be more familiar with the era in which they were raised, which was with the BlackBerry, the iPhone, and all kinds of technology, which possibly you and I barely understand.
The issue is that there is a capacity in government agencies now to do things we could not possibly have imagined when you and I were in law school or practising law or when we came to this House. The concept of metadata was not anything other than for pointy heads at the University of Waterloo in third year engineering. We did not understand it.
We are only now starting to realize that when we get into an airport or any Wi-Fi zone, because of the capacity of CSEC and other agencies, they can get an electronic footprint. As one writer put it, it is as though a BlackBerry becomes a dog tag that follows us.
On Monday, I landed at the Ottawa airport. I went to Starbucks to get a coffee. There is an electronic print of my attendance there. On the way into Ottawa, I stopped at my favourite bank machine. There is an electronic footprint there. In the process of getting through Ottawa, I passed probably two or three Tim Hortons, one or two Starbucks, and a Bridgehead, which I would suggest is probably the finest coffee Ottawa has to offer. Indeed, all of those are Wi-Fi zones. All of those are places where I and other members of this chamber have left electronic footprints. The system is so sophisticated that not only do they know what I did today, yesterday, or Monday, they can actually track back what I or anyone else did weeks ago, because we went through various Wi-Fi zones and left electronic footprints. Therefore, we are all involved in this collection of metadata.
This digital dog tag we carry with us on a daily basis is a way those who wish to track our movements can track them. While they may not engage in finding out who we talked to on our BlackBerrys or iPhones or what the contents of the texts were, they know that we sent out an electronic signal from the Ottawa airport, down Metcalfe Street, into my office in the Justice Building, to here. Because this is a zone, we are giving off electronic signals as we speak.
In some respects, it is like the great game “Where's Waldo?” You and I are from a similar era, Mr. Speaker, and raised our children in a similar period. “Where's Waldo?” was one of my kids' favourites.
It is frequently hidden in plain sight. Our electronic signal, which we think is private, is actually hidden in plain sight.
We get to the government's position, which is essentially, “trust us”. Most Canadians would prefer to trust the government. They would prefer to believe that while it is protecting us from criminality, terrorism, and various other bad things that can happen to citizens, it is respecting our right to privacy. On that issue, the government is actually losing the confidence of Canadians, which could be redeemed by the suggestion from my hon. friend from Malpeque.
I regret to say that some of the words coming from the members of the government, particularly the minister and some of the representatives of the agencies, are words that might be described as weasel language. The point is that the government says that it did not actually target them. It is okay if it did not target them. If we have 1,000 people going through the Ottawa airport, and the government picks up thousands of signals, it is okay, because the government did not pick me or him while it was gathering all of this data.
The minister says in response to various questions in the House that it is his understanding that Canadian communications were not the target. Apparently, if they were not the target, it is okay. They can find out my entire journey from the Ottawa airport to my chair here, and it is okay, as long as I was not the specific target.
CSEC then says that it obeys the law. That is an interesting concept. It obeys the law. It says that as long as it obeys the law, that is perfectly fine, as long as we are not the targets of an intercept. The minister then goes on to say that no laws were broken and that the commissioner reported no breach. However, Canadians are asking who is looking after the spies. Who is looking into these things?
On the point of the legal interpretation, I want to direct the attention of the House to the words of Wesley Wark, who I believe is associated with the University of Toronto. He is a renowned authority on international security and intelligence, and he said, “I cannot see any way in which it fits CSEC's legal mandate”.
In all, we have a pretty sophisticated opinion, which says that the gathering of data on us and thousands of other Canadians is fine, as long as we are not the target. That is the government's position. Professor Wark, on the other hand, takes the view that just the gathering of the information, targeted or otherwise, is contrary to the mandate of CSEC.
We have a fairly significant divergence of opinion just on the legal issue alone, but it kind of gets worse because Canadians are saying the minister does not seem to have any great enthusiasm for protecting our privacy, CSEC does not seem to have any great enthusiasm for protecting our privacy, the commissioner, within a narrow legalized interpretation of his mandate, says no laws were broken, we have a conflicting opinion from Professor Wark, and then we get on to Judge Mosley. I will quote from The Hufftington Post, which states:
CSIS assured Judge Richard Mosley the intercepts would be carried out from inside Canada, and controlled by Canadian government personnel, court records show.
Mosley granted the warrants in January 2009 based on what CSIS and...CSEC—had told him.
However, Canadian officials then asked for intercept help from foreign intelligence allies without telling the court.
I repeat, “without telling the court”.
Mosley was unimpressed, saying the courts had never approved the foreign involvement.
“It is clear that the exercise of the court's warrant issuing has been used as protective cover for activities that it has not authorized,” Mosley wrote in redacted reasons.
That means, Mr. Speaker, that you and I cannot read his full reasoning as to why he is upset with CSEC and CSIS on the abuse of the warrant that he issued.
Judge Mosley further stated:
“The failure to disclose that information was the result of a deliberate decision to keep the court in the dark about the scope and extent of the foreign collection efforts that would flow from the court's issuance of a warrant.”
Mr. Speaker, you and I may have gone to law school a long time ago and we may have practised law a long time ago, but nevertheless, one cannot mislead a judge. One cannot withhold basic information from a judge or use the issuance of a warrant for a purpose for which it was not intended. Therefore, he was a very upset judge, who was not able to fully communicate the extent and nature of his upset because his courtroom is in a situation where it is subject to the Official Secrets Act and various other matters and, therefore, his reasoning is fully redacted.
One does not have to get too far past the first year of law school to know that this is not a happy judge, who feels that he is being abused by the authorities, and that his warrant has been taken far beyond its intention.
This is the core issue. There is a sense in which, with all of the new technology and this collection of metadata, our laws have not kept up with the advances in technology. As I say, even 10 years ago, we did not even discuss metadata. Metadata was simply a rarefied concept among engineers, particularly computer engineers. Now they have the ability to follow people anywhere because they are continuously giving off electronic signals, and the minister seems to be fairly relaxed about it. He seems to be saying that, as far as he knows, they are staying within the law. I guess there is that kind of three blind mice approach to that. We would have hoped the minister would have had a bit more of an aggressive attitude toward protection of Canadians' interests.
Along comes the member for Malpeque, who has had government experience as a solicitor general. I dare say he was solicitor general at a time when metadata was simply a gleam in somebody's eye. He recognizes now that something needs to be done, and his proposal is that we as members of Parliament from both houses take some supervisory jurisdiction with respect to this kind of data collection and these kinds of activities.
It is human. The people who are authorized to protect us are doing that, and they are doing an exemplary job. However, sometimes somebody needs to blow the whistle and say that in their enthusiasm to protect us, they have actually crossed the privacy line. I do not know of any other body that would be more capable of doing that than those people who are the representatives of the people. It is quite a core concept that we either guard our privacy or we lose it.
Here we have almost a cultural distinction between our friends in the United States and Canadians. Frankly, Canadians justifiably feel a bit relaxed. We live in that peaceable kingdom. Canada is obviously the best country in which to live. There is a certain lulling aspect of that, and therefore not as many Canadians are as concerned as they should be about that little trip that I described from Ottawa airport to this chamber.
Our American colleagues are very upset, on the other hand, partly driven by the Snowden revelations, partly driven by the nature and extent of those revelations, and partly driven by their own cultural bias for privacy, freedom, and the American way, as it were.
Our colleagues in the U.S. are actually pointing the way. Their government and President Obama, who has been dragged kicking and screaming to the table, are getting hold of this issue and are insisting on a supervisory jurisdiction for members of Congress and members of the Senate, because they are the people's representatives, after all.
I dare say that is the core of my colleague from Malpeque's motivation, which is that the people's representatives are the ones who get to decide where the line is and whether it has been breached, not the government, not the commissioners or the representatives of the various agencies, not even the defence department.
I have given the House a number of illustrations where thoughtful people have serious concerns about this kind of potential and breach of that kind of data, and that data is not just simply rarefied data that goes off into the middle of nowhere, but serious data as to what we do, where we do it, who we do it with, and a whole bunch of information that Canadians have every right to expect is private.
We either guard our privacy or we lose it, and that is what this debate is all about.
