The Power of Perspectives

The Canadian Bar Association

Justin Ling

CSIS' illegal collection of metadata

November 8 2016 8 November 2016

 

Figuring out the legal strategy behind top-secret intelligence gathering by CSIS, and how the Attorney General defends its methods, isn’t easy.

But a recent decision from the Federal Court peels back a layer of the onion in a way that the public doesn’t usually get to enjoy.

Reviewing an application for undisclosed warrants, and in an effort to amend CSIS’ warrant templates, the Federal Court discovered some unsavoury and flatly illegal data retention policies taking place inside Canada’s main human intelligence agency.

The court found that the spy agency’s practice of archiving metadata for “third-party, non-threat” Canadians — people who had their data swept up under a lawful warrant — was completely contrary the Canadian Security Intelligence Service Act.  The Act requires the service to delete all data collected, unless it is directly authorized under a warrant, pertaining to an ongoing investigation, relating to the security of Canada, or otherwise relevant to the conduct of foreign affairs or the Canadian military.

For the past decade, CSIS has been deleting the content of data that doesn’t fall under those guidelines. But it has been keeping the metadata, and not telling the Federal Court about it. Using that database of intelligence, it can cross-reference details in future investigations. That allowed CSIS to systematically analyze information, in connection to national security investigations, on Canadians that were not targeted by surveillance warrant.

CSIS has stated that it believed the process was perfectly legal, as the data was originally obtained under court order. The service believed it did not need to inform the Federal Court, as it has no supervisory authority. Those assumptions were quickly challenged after the practice was revealed in a report from the Security Intelligence Review Committee, released in 2016.

“During a warrant application before the Federal Court in late 2011, when the matter of the wording change was raised, CSIS legal services did make reference to the retention of metadata,” the SIRC report reads. “However, SIRC was given no indication that the Service was fully transparent with the Federal Court about the nature and scope of its activities with respect to metadata in the context of that discussion.”

The Federal Court decided to investigate further. In a series of en banc hearings, the court uncovered that the metadata program dated back all the way to 2006.

In those hearings, representatives from CSIS confessed that they had been insufficiently forthcoming about the program.

The mea culpa wasn’t enough, esspecially considering CSIS’ response to the SIRC report.

“The Service did not agree with SIRC’s recommendation to advise the Federal Court of activities relating to metadata collected under warrant,” the CSIS reply reads. “CSIS’s position is that section 21 of the CSIS Act [on judicial control] does not confer any general supervisory authority to Federal Court judges, therefore, it believes that SIRC’s recommendation was both inappropriate and unwarranted.”

That CSIS philosophy appears to have guided it since the beginning of this program in 2006, when the service considered informing the court, but ultimately did not. That appears to say a lot about the role that CSIS thinks the courts play.

“How can a privileged party, appearing on an ex parte, in camera basis, reply in such a way?” wrote Justice Simon Noël, responding to CSIS’ letter to SIRC. “Designated judges serve as the gatekeepers of intrusive powers, ensuring a balance between private interest and the state’s need to intrude upon that privacy for the collective good.”

Craig Forcese, University of Ottawa professor and one of the foremost experts on national security law in Canada, broke down the case on his blog and considered some of these legal arguments.

Specifically, Forcese took aim at the argument that a warrant for CSIS to collect the salient intelligence gives it permission to retain and store that data, where it would otherwise be forbidden.

“As someone who teaches public and constitutional law, and defends basic constitutional norms of parliamentary supremacy, and contests the delusion that (except in rare instances inapplicable here) the executive has powers beyond those granted by Parliament, this argument struck me as astonishing,” he writes.

Forcese also slammed the notion that CSIS had no real obligation to tell the courts.

“The government lawyers apparently took the view that they did not need to tell the court how data collected under court warrant was being used, because the court did not have supervisory authority. This is a gobsmacking position, which basically confirms experience with other cases (like Re X): once the warrant walks out the door, the government does as it wills with it,” he writes.

This isn’t the first time that CSIS has played cute with the Federal Court, contending that its policies and practises conform to the letter of the law — if not the spirit — all the while keeping the details of the policy out of the courts altogether.

In a 2013 decision from the Federal Court — the R. v. X case — Justice Richard Mosley admonished CSIS for conducting foreign surveillance that existed well beyond its mandate, using the Communication Security Establishment and foreign intelligence partners to try and comply with previous court rulings.

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