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Head of Senate anti-terror committee unaware of metadata spying program

Hugh Segal is sworn in as a member of the Order of Canada by Governor-General Adrienne Clarkson at Rideau Hall in Ottawa, February 20, 2004.

STRINGER/CANADA/REUTERS

The chair of a parliamentary anti-terrorism committee says he was unaware of a federal spying program that allows for the collection of Canadians' data trails.

Conservative Senator Hugh Segal, who vets security laws as chair of the special Senate committee on anti-terrorism, said in an interview that he and other parliamentarians learned of the program's existence only when they read about it in The Globe and Mail this week.

In Canada, MPs and senators are not looped into the mechanics of surveillance programs. "We do not now have a mechanism to do that," Mr. Segal said, explaining that parliamentarians lack security clearances. "The people whom we would ask, who run the agencies, would be prohibited from giving us any of the details."

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Recent disclosures about the breadth of telecommunications surveillance have led citizens in Western countries to demand answers about classified surveillance programs that their governments are running in the name of protecting national security. In Britain and the United States it is harder for politicians to say they don't know about such programs – these countries routinely give trusted legislators briefings about spying activities.

The Globe revealed this week that an ultrasecretive electronic-eavesdropping agency, Communications Security Establishment Canada, has been authorized to collect data trails – phone logs, Internet Protocol addresses, and other "metadata" – associated with Canadian telecommunications. This is being done as part of a continuing effort to pinpoint Canada's adversaries in the wider world, a never-ending search for networks of terrorists or foreign spies.

In Canada, "ministerial directives" are the legal mechanisms used to make certain spying activities legal. Parliament, which passes overarching laws, is not apprised of these directives.

Records show Defence Minister Peter MacKay issued a "top secret" directive for the CSEC metadata program in 2011. He renewed the program after its initial iteration, which had been authorized by a Liberal defence minister in 2005, was discovered to have been lacking in privacy protections.

Parliament had never been told about any of this. This week, opposition MPs grilled Mr. MacKay during Question Period, asking what the program is and whether it is tantamount to illegal spying on Canadian citizens.

"I have a heads-up for the member," replied Mr. MacKay. "… This is something that has been happening for years."

CSEC's metadata collection rests on a foundational legal assumption by the minister and CSEC. They believe that metadata telecommunications are legally different from private communications, such as the content of e-mails and phone calls, which can't be intercepted without a warrant.

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The Privacy Commissioner of Canada, Jennifer Stoddart, says this premise – never tested outside the security bureaucracy – is debatable.

"When this discussion first came up in 2005-2006, my recollection is that we early on took a position that metadata can reveal important things about people," she said in an interview. "And therefore it is to be classified as personal information."

If the Privacy Commissioner seems to have given more thought to metadata than Parliament has, there is a reason – she has a top-secret clearance. Ms. Stoddart also said that, unlike parliamentarians, she is in regular contact with the CSEC watchdog agency in the bureaucracy that first red-flagged the program's privacy issues.

Mr. Segal, the senator tasked with vetting anti-terrorism laws, lamented in the Globe and Mail this week that parliamentarians have no privileged access. He has spent years fighting for a system that would afford lawmakers a glimpse into ministerial directives and secretive spy programs, but to no avail.

"I'm of the view that those decisions need to be reviewed on a regular basis by a legislative panel – and not just other ministers," Mr. Segal said.

He recalled how, 20 years ago, he was far better apprised of what CSEC gets up too – back when he was a political aide.

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"I would've had security clearance as high as anyone in the country," said Mr. Segal, recalling when he was chief of staff to prime minister Brian Mulroney. Those clearances, he said, expired five years after leaving that job.

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About the Author
National security reporter

Focusing on Canadian matters during the past decade, Colin Freeze has reported extensively on the interplay between government, police, spy services, and the judiciary. Colin has twice been to Afghanistan to be embedded with the Canadian military. More

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