Court confirms that CSE can collect for CSIS

In January, Federal Court of Canada judge Mr. Justice Richard Mosley cleared the way for CSE to support CSIS by collecting information on Canadians outside Canada. Judge Mosley's judgment was released today in redacted form by the Federal Court (CSIS-30-08).

As far as I can tell, the government has always intended that CSE be able to conduct collection activities in support of CSIS. The CSIS Act requires CSIS to obtain judicial warrants to conduct intrusive surveillance activities against Canadians. Then-Solicitor General Robert Kaplan, testifying in 1984 about the proposed act, stated that such surveillance might sometimes be conducted outside of Canada and that there was "no statutory requirement that the entire activities of the Security Intelligence Service be performed in Canada". Section 24 of the Act made it legal for other persons (e.g., other agencies such as CSE) to assist CSIS in executing surveillance warrants issued under s. 21 of the Act, and in 1991 CSE confirmed to the Globe and Mail that it does provide various forms of "technical assistance" to CSIS pursuant to warrants issued under s. 21, although collection was not specifically mentioned. That same year, the Security Intelligence Review Committee, the CSIS watchdog body, noted in its annual report that "current CSIS policies and procedures safeguard the interests of Canadians by limiting the information obtained from CSE to that which CSIS has the mandate and authority to collect." CSE's ability to co-operate with CSIS was explicitly written into Canadian law in 2001, when CSE was finally given its own statutory mandate, one element of which is to "provide technical and operational assistance to federal law enforcement and security agencies in the performance of their lawful duties".

So why was the legal decision necessary? In 2007 Mr. Justice Edmond Blanchard denied an application by CSIS for a warrant to conduct surveillance on ten individuals (nine Canadians and one foreign national) outside of Canada, arguing that without an explicit mandate in Canadian law he had no jurisdiction to authorize activities that would violate customary international law by impinging on the sovereignty of foreign countries (SCRS-10-07). CSIS had sought both to use the services of CSE in conducting the surveillance and to conduct surveillance activities of its own abroad (installing local wiretaps, etc.). Judge Blanchard stated that he found CSIS's arguments that CSE could assist in the execution of such a warrant "persuasive", but he did not rule on that issue as the jurisdiction issue made it moot.

Whether CSIS had never up to that time used CSE's collection abilities in support of s. 21 surveillance warrants, as some of the media coverage on that decision suggests (see, e.g., Colin Freeze, "Spying laws outdated, expert argues," Globe and Mail, 20 February 2008), or CSIS had been using CSE collection support but that support ended up as a collateral casualty in a jurisdictional decision sparked by CSIS's desire to send its own agents to conduct covert surveillance abroad, as seems more likely to me, the result of Blanchard's decision was that CSIS could not use CSE to conduct surveillance on Canadian targets abroad. (CSE surveillance of non-Canadian targets in support of CSIS presumably continued unhindered.)

The Mosley decision has now lifted that roadblock, not by finding a jurisdictional basis for CSIS surveillance conducted in other countries, but by deciding that CSIS can conduct surveillance abroad as long as it is done from "within Canada". Judge Mosley also confirmed that CSE does have the legal ability to assist in such surveillance when pursuant to a s. 21 warrant.

How can CSE conduct surveillance abroad from "within Canada"? Several possibilities come to mind, all of which are probably used from time to time. First, CSE can monitor HF radio and some satellite communications from the CFIOG intercept stations in Canada. Second, many communications between foreign points transit through Canadian territory, and it is likely that CSE has the ability to intercept selected communications from that traffic. Third, CSE can collect local cell phone and microwave traffic from the covert intercept stations it has in many Canadian diplomatic establishments, which technically are considered Canadian territory. [Update 25 November 2013: Actually, that last bit is not true. Canadian embassies, etc. are not considered Canadian territory. But since the intercept sites are Canadian assets that can be tasked remotely from Canada, they still probably fall within the range of techniques that CSE could use.]

Finally, and probably most importantly, CSE can task the collection resources of its UKUSA allies to conduct intercepts of Canadian targets. Those collection resources are located all around the world and even in outer space, but since the tasking can be done from workstations in Canada presumably that too is considered to be from within Canada.

[Update 1 July 2014: CSIS and CSE agreed with this interpretation, but Justice Mosley, when he found out about it in 2013, most assuredly did not.]

The decision also opens the way for another form of CSE collection activity for CSIS. Discussion of this technique is quite heavily redacted in the decision, but it seems clear that the technique in question is remote computer intrusion, e.g., hacking into computers in other locations (in this case, abroad), examining their contents, capturing passwords, monitoring the activities of their users, and so on. Such activities don't fall into the traditional definition of signals intelligence, but CSE has been engaging in this form of intelligence collection for more than a decade, and when its statutory mandate was drafted in 2001 it was written to reflect this broader role ("to acquire and use information from the global information infrastructure").

I strongly suspect that the government intended all along that CSE be able to use its capabilities in support of CSIS in the execution of s. 21 warrants and that the Blanchard decision was an unexpected glitch. Whether it has never been done before or was simply on hold for a couple of years, however, CSE collection support to CSIS has clearly got the green light now. It looks like CSE will be an even busier place in the wake of this latest decision.

Links to some of the media coverage of the decision:

• Jim Bronskill, "CSIS enlists technical wizardry to eavesdrop abroad," Canadian Press, 6 October 2009.
• Colin Freeze, "Canada's foreign intelligence agency can now eavesdrop on citizens abroad," Globe and Mail, 6 October 2009.
• Joanna Smith, "Court gives CSIS expanded search powers," Toronto Star, 6 October 2009.

(HT to Jim Bronskill and an anonymous reader for alerting me to this story.)