The CSE Commissioner's latest
annual report was tabled in the House of Commons on June 12th. The report was the first by
new commissioner Charles Gonthier, who took over from Antonio Lamer last year, and it makes for very interesting reading.
Although it takes care not to reveal operational secrets, the report provides a lot more information on the current and previous CSE Commissioners'
disputes with CSE and its Department of Justice legal advisors about various aspects of interpretation of CSE's legal regime, and it makes clear that Gonthier has picked up the torch from Lamer on this issue.
The new commissioner is off to a very promising start. This is by far the most detailed annual report by a CSE commissioner, and although Gonthier stopped short of stating that CSE has been violating the law, he made it clear that in his view the law needs to be amended to ensure that CSE is not currently breaking the law ("When assessing the lawfulness of activities conducted under ministerial authorizations, I have agreed to use the Department of Justice's interpretation for the present pending amendments to the legislation, which I have already urged be made at the earliest opportunity.").
The nature of the disagreements is not made clear. However, CSE Chief John Adams confirmed in his
recent testimony to the Standing Senate Committee on National Security and Defence that amendments to address such issues and possibly extend CSE's powers are currently being looked at ("CSE must ensure it has the necessary authorities to remain effective and to address the government's key intelligence priorities. CSE is currently working with the Department of Justice and other government partners to meet these requirements.... There are some areas that are somewhat ambiguous, so we could certainly recommend improvements to those. We are working on that in conjunction with the Department of Justice Canada and other people who are looking at legislation.").
Chief Adams also gave a rather disconcerting example of one possible area of disagreement, without confirming that it necessarily represented one of the disputes with the CSE Commissioner:
I will give you an example about one of the concerns expressed to us, which involves the whole business of intercept. What is your interpretation of intercept, if I were to ask? If you asked me, it would be if I heard someone talking to someone else or if I read someone's writing.
An intercept would not be to look on the outside of the envelope. That is not an intercept to me. Unfortunately, that is not everyone's interpretation of intercept, so the suggestion is that we should define that in the legislation....
Intercept is defined in another piece of legislation, and that is where people would probably look if they were searching for a definition of intercept. They are saying that could be troublesome for us, so we had better define it in our act to avoid that problem. That sort of thing has not come up as an issue, but it could.
It sounds like CSE would like to have the power to collect phone records (number called, duration of call, etc.) and similar addressing information for e-mails and other communications without the bother of ministerial authorizations. Or that maybe it thinks it already has this power. Is CSE already collecting such information? (What exactly does Adams mean when he says "that sort of thing has not come up as an issue" if it is also an example of "one of the concerns expressed to us"?)
Call records and similar information would be just the sort of raw data needed for
network-analysis data mining, which CSE has shown considerable interest in recently.
NSA has reportedly collected massive amounts of such information related to U.S. communications (one aspect of the warrantless wiretapping scandal down south), so CSE interest in something similar is not entirely implausible.
There were lots of other interesting comments in Adams's testimony. But that's a matter for future posts.
CP coverage of the Commissioner's annual report by the ever-reliable Jim Bronskill: "
Spy watchdog says 'troublesome' legal hurdle hampers his work,"
Canadian Press, 12 June 2007.
