Spy agency admits it spies on Canadians ‘incidentally’ by Ian Macleod, Ottawa Citizen, January 6, 2014, in Calgary Herald
Canada’s foreign intelligence agency admits it “incidentally” spies on Canadians, but wants to reassure the public it protects the privacy of that information. “In the course of targeting foreign entities outside Canada in an interconnected and highly networked world, it is possible that we may incidentally intercept Canadian communications or information,” the Communications Security Establishment Canada (CSE) said in a new statement posted on its website. It is the first time the country’s ultrasecret signals intelligence agency has strayed from its standard assurance that it does not “target” the electronic communications of Canadians.
A CSE spokesman said the statement is an initial response to increased media attention and public interest in the organization following the disclosures by former U.S. National Security Agency (NSA) contractor Edward Snowden. Leaked documents Snowden stole from the NSA have revealed a vast, global and often illegal electronic spy net operated by the NSA and its allied agencies, including the CSE. It includes the capture and storage of millions of Internet users’ online travels — metadata — from browsing history to email activity.
The CSE says additional information about how it operates is to be posted in coming months, “to share more information about our organization in as transparent a manner as possible while still respecting our security obligations.” But experts say the effort is largely government mantra that does nothing to address issues raised by the Snowden leaks. “It is no longer an adequate response to reproduce ‘Surveillance Law 101’ boilerplate summaries and to refuse to address the astonishing facts,” said Craig Forcese, a leading scholar on national security law at the University of Ottawa.
“The question is not whether CSEC and CSIS know the law. It is whether they followed it.” Nor does the statement address any of the concerns raised in the Snowden leaks about metadata collection, or about the use of CSE’s foreign intelligence partners for information exchanges about targets, including Canadians of national security concern, said Wesley Wark, a security intelligence expert at the University of Ottawa. “However well meaning, as an act of ‘transparency’ the CSE statement gets a failing grade,” he said.
On a related front, experts on privacy, the Internet and national security law are questioning the actions of some Justice Department lawyers associated with what a Federal Court judge has characterized as a deliberate attempt to mislead the court into granting intelligence-gathering warrants to spy on Canadians overseas. Two legal experts are calling on the federal government to launch an independent investigation into the case. In a blistering declaration just before Christmas, Justice Richard Mosley slammed the Canadian Security Intelligence Service (CSIS) — sister agency to the CSE — and its Justice Department lawyers for purposely crafting evidence to keep the court “in the dark” about how the warrants would be used. The lawyers’ actions took place during secret hearings beginning in 2009 in which they sought warrants to allow CSIS to gather electronic intelligence on Canadians overseas whom CSIS suspected as domestic national security threats. It is not clear what roles were played by each of the five federal lawyers named in the case.
The warrants were granted on the understanding that the electronic intercepts were to be carried out from passive, Canada-based listening posts because the federal court has no jurisdiction to authorize spying on foreign soil. The technical side of the intercepts was handled by the CSE, which is empowered by the National Defence Act to offer such services to law enforcement and national security agencies. The CSE, in its new statement, said in such cases it is “acting in an ‘assistance role’, operating under the requesting agency’s legal authority — such as a warrant — and is subject to the provisions of their mandate and policies.” Yet once the so-called 30-08 warrants were approved by the court, the CSE, on behalf of CSIS, turned the job over to one or more of its partners in the “Five Eyes” electronic intelligence-gathering alliance among Canada, the U.S., Great Britain, Australia and New Zealand. Mosley said he was satisfied “that a decision was made by CSIS officials in consultation with their legal advisers to strategically omit information in applications for the 30-08 warrants about their intention to seek the assistance of the foreign partners.” CSIS then assigned powers to the warrants that the court never authorized and which do not exist in law, he said. The result, said Forcese, “is there was none of ‘legal authority’ to which CSE is referring in its discussion of its ‘assistance mandate.’”
The case illustrates the danger inherent in a one-sided system under which government officials and their lawyers often appear alone at secret, federal court hearings to deal with intelligence activities, said Tamir Israel, staff lawyer for the Ottawa-based Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic. “Foreign intelligence has, to a large degree, been exempted from the adversarial system that we generally rely on for safeguarding our rights, and the result has proven to be a dramatic and largely unchecked expansion in surveillance. “Under the current system, parties such as CSE and other elements of the executive are pushed to adopt positions and characterizations of activities that are most favourable to them in judicial proceedings and public statements, but this approach is incapable of providing politicians, the general public or judges with a complete and accurate picture of the scope and nature of surveillance activities. “We have no guarantees that this will occur the next time a court authorizes surveillance without a complete understanding of its resulting impact.”
Michael Geist, an Internet and e-commerce law expert at the University of Ottawa, writes that the “deliberate attempt to mislead the key oversight body (the federal court) by omitting relevant information should anger more than just (the judge) who clearly felt that he was duped by CSIS. The government should commission an independent review to examine current oversight mechanisms, identify shortcomings on both oversight and the law, and recommend potential reforms to salvage a system that is under increasing public scrutiny and criticism.”
David T.S. Fraser, a noted Halifax privacy law expert, goes further: “The government needs to appoint a special prosecutor to investigate how this came to be and the law societies governing those five lawyers should investigate what really appears to be egregious professional misconduct,” he writes in the Canadian Privacy Law blog. “Only a special prosecutor can do the job, as all five of the lawyers were arguing their case on behalf of the Deputy Attorney General of Canada, the country’s top lawyer and prosecutor. Anything less would be sweeping this under the rug.” [Emphasis added]
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