CSIS coasters are pictured in Ottawa in a 2011 photo. THE CANADIAN PRESS/HO, CSISThe Canadian Press
For a few days, there was a happily yawning gap in the U.S. National Security Agency's ability to surveil American citizens. Congress could not agree on how – or whether – to renew the section of the foolishly named Patriot Act that had allowed the government to scoop up and hold all the metadata (identifying both callers and addressees) of all cellphone calls in the U.S. The Foreign Intelligence Surveillance Court would then grant or, at least sometimes, not grant, access to the actual contents of the conversations – in other words, a search warrant.
The upshot – under the new U.S.A. Freedom Act (officially, the "Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring Act of 2015") – is that phone companies, not the NSA and the FBI, will record and store all the metadata for all phone calls. Those agencies will no longer be able to get at that kind of data at will, indiscriminately. The security agencies will have to apply to the FISC court for metadata, too. That's progress, though FISC may be a bit of a rubber stamp.
There is, by the way, no sign that terrorists attacked the United States in the unsurveilled interval between the Patriot Act section and the Freedom Act.
What about Canada? Our Communications Security Establishment – the equivalent of the NSA – never vacuumed up all Canadian metadata. However, Edward Snowden's revelations have provided strong evidence that CSE agents go or have gone on fishing expeditions, specifically in Canadian airports, randomly looking for all sorts of communications metadata. It's a more selective approach than American trawling in "bulk telephony collection," but really just different in scale, not in kind.
As for the police, Bill C-13, now enacted, and the Supreme Court of Canada's decision in R. v. Spencer add up to an acceptable regime requiring search warrants to read electronic data.
But that leaves the uncharted, bewildering territory of the much more troubling Bill C-51, the Anti-terrorism Act, enacted last week, with its mysterious "measures" and incomprehensible call for judicial warrants for unconstitutional actions. What does all this mean to CSIS, the RCMP and other police forces, and the CSE, too? The federal government should explain how these agencies will relate to each other in this new, little-understood world.