When members of the intelligence community brief Congress on highly classified programs, they’re incentivized to do so in a way that provides the necessary amount of detail to satisfy legal and administrative requirements, and not a shred more. Since most members of the intelligence committees aren’t experts, an imbalance is built into the system. The briefers will use technical language, knowing that members often can’t share with their staffs enough information to develop follow-up questions. Members know this and tend to be the alert for weasel words or any hints or indications that there are depths to the particular program that might not be visible in a briefing. The less trust there is between institutions, the more games are played in the briefings. These games have become endemic, which for oversight is troubling. The less trust we have in government, the more likely it is for freelancers and hobbyists, people who traffic in classified information that is expressly often pulled from its context, to decide whether to publish secrets. Don’t blame this on the lone wolves. Blame it on the gatekeepers for failing to maintain credibility.
We live in environments that are pervasively penetrated by digital systems. We carry personalized tracking devices with us everywhere (i.e. mobile phones) that have increasingly sophisticated sensors embedded in them. We rely on Internet-based systems for travel, work, and play. Even our ‘landline’ communications are pervasively turned into digital code when we call a friend or family member.
Every one of the previously mentioned transactions generates ‘non-content’ data: when and who we call, and for how long; which cellular towers we pass by; what (semi-)unique IP addresses are provided to websites we visit, and so forth. These identifiers can be used to trace our movements, practices, and who we communicate with: they are often far more revealing about ourselves than the pure content of our communications.
It’s with the reality of the surveillance potentials of metadata that we need to reorient how to talk about such ‘non-content’ data. It has become depressingly common to see elected officials and other authorities state that “it’s just metadata” as well as “we only use it for appropriate purposes.”
To the first statement, metadata can reveal incredibly sensitive infomation about individuals and about their community/communities. The collection and processing of such information therefore warrants a similar degree of care and concern as the processing of clearly personal information.
To the second statement, clarity around collection and use of metadata is needed. Moreover, data cannot be massively collected and ‘appropriate purposes’ just applied to how the data is subsequently parsed. The very collection of data itself needs to be targeted, justified, and enjoy significant oversight – arguably more oversight that ‘just’ the content of communications.
In a recent paper on metadata, Ontario Information and Privacy Commissioner Ann Cavoukian wrote:
we urge governments to adopt a proactive approach to securing the rights affected by intrusive surveillance programs. To protect privacy and liberty, any power to seize communications metadata must come with strong safeguards directly embedded into programs and technologies, that are clearly expressed in the governing legal framework. The purpose, scope, and duration of data collection must be strictly controlled. More robust judicial oversight, parliamentary or congressional controls, and systems capable of providing for effective public accountability should be brought to bear. The need for operational secrecy must not stand in the way of public accountability. Our essential need for privacy and the preservation of our freedoms are at stake.
Commissioner Cavoukian is decidely correct that data collection, use, and intent must be carefully controlled. However, I would go a step further than the Commissioner has in her call for additional parliamentary oversight and control. In Canada, and unlike the United States and United Kingdom, there is not a committee of parliamentarians with security clearances to oversee how our intelligence and security authorities operate. Presently, the Canadian system predominantly enjoys only Cabinet-level political oversight: we need a broader set of eyes, and eyes that are not mindful of the ruling government’s optics, to evaluate the appropriateness of what our intelligence and security services are up to. So, in excess of Commissioner Cavoukian’s comments, we actually need to modify parliament such that oversight is even possible.
Reasonable people can disagree on the value and desire for national security and foreign intelligence services. Such disagreements should happen more prominently amongst parliamentarians and the public. However, there should be no disagreement that, in order to represent the public, at least some members of our legislative assemblies must know the extent of the government’s security and intelligence powers, capabilities, and practices.
Canada is a democracy and, as such, it is imperative that we establish a committee of parliamentarians to oversee how our security and spy agencies are collecting, using, and retaining the metadata and content associated with our communications. The actions that these agencies engage in are too significant to leave to Cabinet oversight alone.
- Ann Cavoukian. (2013). “A Primer on Metadata: Separating Fact from Fiction.” Office of the Information and Privacy Commissioner of Ontario. Available at: http://www.privacybydesign.ca/content/uploads/2013/07/Metadata.pdf. Pp. 10. Emphasis added. ↩