Three judges of the Newfoundland Court of Appeal have made a ruling that calls into question the Harper government’s claim that it’s legal for Canadian spy agencies to collect telephone numbers, email addresses and the times of messages and calls on mobile devices — the “metadata” that the federal spying agency Communications Security Establishment Canada has admitted it collected, at random, in a Canadian airport.
The Newfoundland judges’ ruling is part of a much larger and interesting case, but outlining the particulars could affect an ongoing criminal case — so, for the purposes of this column, let’s just call it the case of the lawyer’s cellphone.
Here are the bare bones: the Royal Newfoundland Constabulary, as part of an investigation, got a warrant to collect data on calls made to and from a lawyer’s cellphone. That warrant was later thrown out by a Supreme Court of Newfoundland judge, and was subsequently unanimously thrown out again by the Court of Appeal.
The judges’ concern? That any part of the information collected — even metadata — can be privileged. In other words, even a phone number or the time of a call between phones needs specific permission from the courts before it can be released, and that effort wasn’t done to the law’s satisfaction.
For those who follow the issue, it’s worth looking at what Court of Appeal Judge Michael Harrington wrote about the metadata involved. (He wrote the decision — all three judges agreed.)
“To the extent, however, that there is any doubt or confusion regarding the breadth of privilege and its application to metadata, as opposed to content … allow me to clarify that both the metadata (which provides information about other data, including the telephone numbers that sent and received text messages and made or received phone calls, as well as the times the calls and messages were made) and the content of the text messages should have been presumptively treated as subject to solicitor-client privilege unless and until decided otherwise by a justice of the Trial Division.”
In other words, metadata certainly can contain private information, and should be treated that way. In fact, if it comes from a lawyer’s phone, it’s not only private information, but it should be assumed to be protected by solicitor-client privilege unless proven otherwise before a judge.
Nationally, the CSEC ran a test program that allowed it to track phones and other electronic devices at a Canadian airport, right down to tracking where those devices travelled to, and the contacts made from them. The test program has since apparently gone into full-scale operation.
Looking at it from the case outlined by the Newfoundland judges, if CSEC was collecting reams of such information in a Canadian airport, it not only would need a warrant, but it could conceivably have that warrant tossed out the second a lawyer’s cellphone or tablet was involved.
Since the CSEC was collecting the information holus-bolus, without even trying to establish the nature of the information it was collecting, it couldn’t possibly satisfy a judge that it was protecting that potential aspect of information.
In the Newfoundland case, the ruling was definite: the RNC needed a properly constituted warrant to even have access to metadata — and in this case, it did not.
It stands to reason that the CSEC would also need a warrant to harvest any metadata, let alone oceans of it, and would have to go to extensive steps to ensure it wasn’t collecting information beyond the purview of the warrant.
The CSEC says it did nothing wrong — that collecting the data and showing how it could be used to follow devices and their owners in their travels wasn’t so much a tracking operation as it was an effort to “understand global communications.”
Whatever the purpose, however, collecting the data doesn’t look like it would pass muster for the judges of the Newfoundland Court of Appeal. It would be interesting to see how the Harper government and the CSEC would argue otherwise — but then again, it doesn’t appear bothered with trying to get a warrant anyway.
Russell Wangersky is The Telegram’s
editorial page editor. He can be reached by email at firstname.lastname@example.org.