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A Little Help From Our Friends

Posted by Matt on November 28, 2013         Tagged with: surveillance, csec, nsa

There are two recent surveillance-state stories which I think I can tie together in a neat little bow, since they both concern how the Communications Security Establishment gathers information on Canadians.

As I've discussed before, CSEC's governing legislation, the National Defence Act explicitly states that CSEC is not supposed to be directing it's surveillance activities at Canadians. That is inconvenient when, you know, CSEC wants to gather information about Canadians. They are allowed to support other agencies, like CSIS, who can gather information about Canadians if they have a warrant, but in those situations CSEC can only engaged in surveillance activities permitted by the warrant.

CSEC apparently looked at this situation and thought: "Loophole! We'll just ask someone else to spy on Canadians for us!". And that's what they did.

The first story is these reasons from the Federal Court. Much of the reasons remain classified, so we have to make due with a brief public summary. My reading of the summary is that CSIS went to the Federal Court to get a warrant to conduct surveillance on two Canadian citizens within Canada. Inconveniently, these citizens decided to travel outside of Canada. So CSIS went to CSEC for help and CSEC asked their Five Eyes buddies to carry out the surveillance for them.

The Federal Court was not thrilled about this and felt they should have been told about this at the time that the warrant was requested. They conclude the summary by stating:

This practice is addressed in the Court’s classified Further Reasons for Order. However, in light of these public statements, the Court considers it necessary to state that the use of “the assets of the Five Eyes community” is not authorized under any warrant issued to CSIS pursuant to the CSIS Act. The question of whether CSIS may, with the assistance of CSEC, engage the surveillance capabilities of foreign agencies was not raised in the application that resulted in the issuance of the first such warrant or in any subsequent warrants of this type.

So if you're going to ask foreign intelligence agencies to spy on Canadians on your behalf, be sure to ask permission first.

The second story is that the NSA (unsurprisingly) conducted surveillance activities within Canada during the 2010 G20 conference in Toronto and CSEC (unsurprisingly) was totally cool with that. Maybe too cool.

Whatever the intelligence goals of the NSA during the Toronto summit, international security experts question whether the NSA spying operation at the G20 in Toronto was even legal.

"If CSEC tasked NSA to conduct spying activities on Canadians within Canada that CSEC itself was not authorized to take, then I am comfortable saying that would be an unlawful undertaking by CSEC," says Craig Forcese, an expert in national security at University of Ottawa's faculty of law.

By law, CSEC cannot target anyone in Canada without a warrant, including world leaders and foreign diplomats at a G20 summit.

But, the Canadian eavesdropping agency is also prohibited by international agreement from getting the NSA to do the spying or anything that would be illegal for CSEC.

I don't know what international agreement is being referred to there but I doubt anyone at CSEC spends too much time thinking about it. And consider that the Ombudsman of Ontario, commenting on the actions of police during the G20 conference, has already stated that it was "the most massive compromise of civil liberties in Canadian history". It's beginning to sound like infringing Canadian's rights was just par for the G20 course.