An annual report tabled two days ago from the independent watchdog commissioner for Canada's electronic eavesdropping agency Communications Security Establishment Canada elicited the following timid headlines repeated throughout yesterday's press coverage.
Post Media : Canadians may be victims of illicit spyingWhoa. "May be spying on Canadians"? "may"? Which report did they read?
Several of the articles quote this reaction from a spokesy for DefMin Rob Nicholson :
"The privacy of Canadians is of utmost importance. CSEC is prohibited by law from directing its activities at Canadians anywhere in the world or at any person in Canada."Sure. Part (a) of CSEC's mandate** prohibits spying on "any person in Canada" or Canadians anywhere in the world.
Part (b) is a little looser, permitting CSEC to use information acquired by the Government of Canada system owners to protect their computer systems from mischief.
But Part (c) ... Part (c) specifically directs CSEC on when it may spy on Canadians on behalf of CSIS.
Communications Security Establishment Commissioner,
Annual Report 2012 - 2013
CSEC assistance to CSIS under part (c) of CSEC’s mandate (Page 21)
In 2009 ... the Honourable Justice Richard Mosley*** ... issued the first warrant permitting CSIS to intercept the communications of Canadians located outside Canada using the interception capabilities of CSEC ... from within Canada.This assistance includes CSEC supporting CSIS with the interception of Canadians’ communications if CSIS has a judicially authorized warrant.
CSIS is authorized to collect threat-related information about Canadian persons and others and, as discussed above, is not subject to territorial limitation.
... the collection of the information by CSIS with CSE[C] assistance, as proposed, falls within the legislative scheme approved by Parliament and does not offend the Charter.So what's with these timid headlines, national press? Are you suggesting that while CSEC was permitted to spy on Canadians for CSIS, they didn't actually do any?
CSEC’s assistance to CSIS under the warrants may include use of Canadian identity information and the interception of the communications of Canadians.
No, obviously not. Page 24 :
During the period under review, CSEC responded appropriately to two related privacy incidents it identified involving the unintentional release of Canadian identity information of some of the subjects of the warrants.
... another incident involv[ed] the interception of communications for CSIS for a small number of days after a particular warrant had expired [due to] unintentional human error
Page 27 : the amount and treatment of private communications and Canadian identity information acquired by the activities as well as a sample of those private communications and Canadian identity information used by CSEC
Private Communication: “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"
Page 33 : In 2012, CSEC started using a new on-line secure system to process requests for and disclosures of Canadian identity information. CSEC provided my employees with a demonstration of the system, which is currently used with CSEC’s principal clients. CSEC intends to extend its use to other partners starting in the coming fiscal year.Headlines later on in the day gave us the CSEC response :
Ottawa Citizen : CSEC Says It Is Not Breaking The Rules About Spying On Canadians
PostMedia : In wake of spying allegations, Communications Security Establishment Canada insists it didn’t break lawNo, CSEC isn't breaking the rules but only because those rules allow it to spy on Canadians while working under the guidelines of CSIS.
But they don't say that, do they? Instead we get weasel crap like this :
“The commissioner’s statement about a lack of records is a reference to a single review of a small number of records gathered in the early 2000s, in relation to activities directed at a remote foreign location,” the agency said in an emailed response.Yes, part of the commissioner's complaint is directed at incomplete records in "early years". Doesn't exactly address CSEC spying on Canadians since though, does it?
So how did all you reporters at different media outlets all separately decide to downplay the watchdog commissioner's report on electronic surveillance of Canadians to "may be" spying?
Yes, I realize he wrote a nice positive preamble about how he sees himself as working with CSEC on a "complementarity" not an adversarial basis, "more as CSEC’s conscience than as a sword of Damocles" and how he's been quite pleased with the results. Further he writes that "where I have no mandate to follow-up, I may refer questions to SIRC that concern CSIS".
We recently learned that since 2009, CSEC - as a Five Eyes intelligence partner with the US, UK, New Zealand, and Australia alongside CSIS, RCMP, and CBSA - has been authorized to exchange intelligence with other nations even if there is “substantial risk” that sending info to or requesting info from a foreign agency would result in torture ... just as long as a deputy minister or agency head gives it the ok.
What happened to Maher Arar - once so shocking to all of us - has a legal basis here now.
So you reporters in the Canadian media can't be letting us down like this.
Read the friggin report - it's only 46 pages long.
More from POGGE : On watchdogs with no bite.
**CSEC’s mandate [Page 9 from Commissioner Robert Décary's report ]
When the Anti-terrorism Act came into effect on December 24, 2001, it added Part V.1 to the National Defence Act, and set out CSEC’s three-part mandate:
• part (a) authorizes CSEC to acquire and use foreign signals intelligence in accordance with the Government of Canada’s intelligence priorities;
• part (b) authorizes CSEC to help protect electronic information and information infrastructures of importance to the Government of Canada; and
• part (c) authorizes CSEC to provide technical and operational assistance to federal law enforcement and security agencies, including helping them obtain and understand communications collected under those agencies’ own lawful authorities.
***The Honourable Justice Richard Mosley was a primary architect in the drafting of the 2001 Anti-Terror Act and more recently the judge in the six-riding election fraud case.
Sunday update : Michael Geist :
"Canadian domestic communications that travel from one Canadian location to another may still transit through the U.S. and thus be captured by U.S. surveillance. Despite these risks, Bell requires other Canadian Internet providers to exchange Internet traffic outside the country at U.S. exchange points, ensuring that the data is potentially subject to U.S. surveillance."