My first post on the privacy threats in Bill C-13 focused on the voluntary disclosure of personal information and the complete civil and criminal immunity granted to intermediaries such as ISPs and telecom companies that provide such disclosures. This post focuses on the low threshold the bill establishes for a new “transmission data” warrant and explains why this represents a serious privacy risk.
The bill defines transmission data as data that:
(a) relates to the telecommunication functions of dialling, routing, addressing or signalling;
(b) is transmitted to identify, activate or configure a device, including a computer program as defined in subsection 342.1(2), in order to establish or maintain access to a telecommunication service for the purpose of enabling a communication, or is generated during the creation, transmission or reception of a communication and identifies or purports 
to identify the type, direction, date, time, duration, size, origin, destination or termination of the communication;
(c) does not reveal the substance, meaning or purpose of the communication.
The bill creates a new warrant that allows a judge to order the disclosure of transmission data where there are reasonable grounds to suspect that an offence has been or will be committed, the identification of a device or person involved in the transmission will assist in an investigation, or will help identify a person. The government relies on the fact that this is a warrant with court oversight to support the claim that Canadians should not be concerned by this provision. Yet the reality is that there is reason for concern as the implications of treating metadata as having a low privacy value is enormously troubling.
most browsers used to surf the Internet are programmed to automatically retain information about the websites the user has visited in recent weeks and the search terms that were employed to access those websites. Ordinarily, this information can help a user retrace his or her cybernetic steps. In the context of a criminal investigation, however, it can also enable investigators to access intimate details about a user’s interests, habits, and identity, drawing on a record that the user created unwittingly: O. S. Kerr, “Searches and Seizures in a Digital World†(2005), 119 Harv. L. Rev. 531, at pp. 542-43. This kind of information has no analogue in the physical world in which other types of receptacles are found.
In recent months, there have been numerous articles, reports and studies on the privacy value associated with metadata:
- A Stanford study recently found that researchers could predict romantic relationships automatically using only phone metadata.
- Ron Deibert highlights an MIT study that examined months of anonymized cellphone data and found that only four data points were needed to identify a specific person 95 percent of the time.
- Susan Landau points out that metadata can reveal locational information, medical information, or important business information.
- Jay Stanley and Ben Wizner identify studies that have found that sexual identify can be guessed based on Facebook metadata.
- The Privacy Commissioner of Canada released a study earlier this year on the privacy value of IP addresses, noting how that one data point could lead to information on website habits that includes sites on sexual preferences.
- Ontario Privacy Commissioner Ann Cavoukian has issued a primer on metadata that finds that it may be more revealing than content.
In fact, even CSEC apparently acknowledged in 2008 that:
bulk, unselected metadata presents too high a risk to share with second parties at this time, because of the requirement to ensure that the identities of Canadians or persons in Canada are minimised, but re-evaluation of this stance is ongoing.
A recent lawsuit launched by the British Columbia Civil Liberties Association challenges the constitutionality of ministerial directives that permit widespread metadata collection. In sum, the debate over metadata isn’t much of a debate at all since analysis of the privacy implications of metadata regularly concludes that it has significant value.
Given the privacy importance of metadata, Canadians might have reasonably expected the government to establish a standard in the transmission data warrant that at least matches conventional warrants. In fact, the Justice ministers report that serves as the policy basis for Bill C-13 recommends the creation of new investigative tools in which “the level of safeguards increases with the level of privacy interest involved.”
Yet despite the privacy implications of metadata, the threshold for the transmission data warrant is extremely low. The reason to suspect standard sets a very low bar, requiring only the possibility of criminal behaviour. That is in contrast with the reasonable grounds to believe standard used with a conventional warrant. As Michael Spratt notes, the Supreme Court of Canada has ruled that the reason to suspect standard is only acceptable where the privacy interest is not high (Craig Forcese argues that the standard may be appropriate in this post).
The government would like Canadians to believe that invoking the existence of court oversight is enough to address the privacy concerns in Bill C-13. But with the privacy significance of metadata and the low threshold established by the proposed transmission data warrant, the bill’s lawful access provisions are the source of genuine privacy concerns.
Michael,
Do you think a challenge to this bill based on section 8 of the charter would be successful? Given that it is demonstrable that metadata can reveal intimate details of one’s life, there should be a reasonable expectation of privacy.
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Amazing that the same government who struck down Section 13 of the human rights act, because of it’s chilling effects on free expression, now promotes a bill that is considerably more restrictive and damaging to free expression in Canada.
“In sum, the debate over metadata isn’t much of a debate at all since analysis of the privacy implications of metadata regularly concludes that it has significant value.”
Not so fast… the reason it isn’t much of a debate is because fundamentalist libertarian arguments like this one are so self-referential, failing to engage the view they critique.
First and foremost: you are using “privacy” and “revealing” as interchangeable concepts in this post; therefore, because metadata is revealing proves its private status. Well, that is not what privacy is: whether information is revealing or not tells us nothing about its private or public quality, only of its informative quality. Of course good metadata is highly informative: that’s what “information” means.
The way you define your privacy excludes the possibility of anything that is both highly informative and highly and inherently public. Well obviously, MOST information is both, whether from journalism or academia, or our simple social observation of fellow human beings in the public square. Of course CSEC is looking for highly informative information, since the whole mission of intelligence – like journalism or science – is to learn about the world. So say “even CSEC” acknowledges that metadata is revealing, but what else what you expect them to claim? That their collection is safe because it is ineffective or irrelevant? You set them up as a straw man… A spy agency admitting it spies is not a concession to its critics. That metadata has such informative value proves that CSEC is justified in collecting: these are purposive requests.
It’s casual, idle curiosity that constitutes abuse of intelligence power. It’s overreaching collection of low-vaue data that concerns me… but you’ve set my mind at ease! 😉
What we also cannot do is define privacy as anonymity. Metadata is identifying information: it indicates who we are (or from whom our communications originate). Traditionally, Canadians have not considered basic personal identity to be a private matter in the physical world… we do not object to photo ID or licence plates, for example. Yet online, anonymity is a cherished tradition: there’s a culture clash there having nothing to do with rights.
Personally, I’m a cyber-cynic and I don’t feel any particular expectation of privacy about anything I say or do online, and I don’t think most Canadians do either. Caveat Emptor… It you don’t like the neighbours looking in through the windows – or the cops parked across the street, for that matter – then the responsibility falls to you close the curtains. Now, you are certainly entitled to argue morally and normatively for why I *should* expect or demand privacy, and if convincing then Parliament has every right to restrict surveillance accordingly… for example, most people would agree with Cory Doctorow that what we do in a bathroom stall is obviously private (although its noteworthy that, like many of our most deeply private activities, defecation is not very informative or “revealing” about us at all). We feel the “substance, meaning or purpose of the communication” are likewise private, because we want a society where we can say different things to different people, so we require warrants. Many argue the view of a woman’s ears are inherently private (the majority disagrees, but the Muslim minority is entitle to take measures for the moral imperative of “modesty” and the state is wrong to intervene) The reason there is no “right to privacy” written into the Charter is that the scope of what is private is a cultural and subjective value – and therefore a matter for Parliament, not the courts.
But there’s no moral content in this post to help me decide where C-13 should draw these moral lines. Some make claims, especially popular during the Arab spring, that an expansive online privacy will liberate societies and strengthen democracy; such cyber-utopianism a cogent moral argument, at least. But we certainly cannot resolve every single Canadian political decision by the litmus test of personal liberty, or worse, by only ever debating constitutionality…
As to the extract form the courts’ language that browser history can “unwittingly” create a record, they were more apt than they knew: to be ignorant of this is truly witless, considering that as the court writes in the *very preceding sentence* the creation of a record is emphatically a designed and intended purpose of the function in browser software. The carelessness of criminals and terrorists is not to be held against the state: in other spheres ignorance of the law is no excuse, but for cyber-illiterate “expectations of privacy”, apparently, the court feels it is.