If you were watching today's testimony of John Forster, chief of the Communications Security Establishment Canada and Michel Coulombe of the Canadian Security and Intelligence Agency before the Senate national security and defence committee, you probably noticed the consistent denial that they were intercepting "private communications", in contrast to metadata. That phrase was repeated like a mantra. The origin seems to come from the Criminal Code, which contains the following ambiguous definition at Section 183.
"private communication” means any oral communication, or any telecommunication, that is made by an originator who is in Canada or is intended by the originator to be received by a person who is in Canada and that is made under circumstances in which it is reasonable for the originator to expect that it will not be intercepted by any person other than the person intended by the originator to receive it, and includes any radio-based telephone communication that is treated electronically or otherwise for the purpose of preventing intelligible reception by any person other than the person intended by the originator to receive it;
It would certainly appear that these witnesses were well coached to believe that "private communication" includes "metadata", which was dismissed as just "data about data". I'm not so convinced that "private communication" excludes signalling information or transmission data. First, the definition refers to "any oral communication" or "any telecommunication", not "any oral communication" or "any [oral] telecommunication". Words matter and -- in this case -- punctuation matters.
Any capturing of metadata is, in my view, capturing "private communications".
And the suggestion that capturing "metadata" is somehow innocuous flies in the face of reality. Who I call is my business. How often I call them is also my business. I have no problem if you can get a judge to issue a warrant, based on reasonable and probable grounds, to intercept it. But dragnet surveillance of innocent people is not acceptable in a free and democratic society.
(I'm afraid, given the recent revelations, that nobody will be able to say -- for any communication -- that it "is reasonable for the originator to expect that it will not be intercepted".)