CSE Commissioner's 2009-2010 report

The CSE Commissioner's annual report was released during the summer.

Although submitted by the new Commissioner, Robert Décary, the report is based on the activities and findings of his two predecessors, Peter Cory and the late Charles Gonthier.

The big news, from my point of view, is that the report finally provides an explanation of the longstanding legality dispute (see also this) between CSE/Department of Justice and successive CSE Commissioners.

What's at stake are the "ministerial authorizations" signed by the Minister of National Defence that authorize CSE to intercept communications that may include "private communications" as defined by the Criminal Code. As noted by the Commissioner (and acknowledged by CSE Chief Adams and Associate Chief (Operations) Robert Gordon in 2007), these authorizations do not apply to the monitoring of particular individuals or groups but rather to methods of collecting foreign intelligence--presumably things like the collection of internet traffic or the monitoring of telephone traffic carried on telecommunications satellites.

It is not always clear, especially with internet traffic, whether one or even both ends of a particular communication may be in Canada, in which case it would be subject to the laws pertaining to private communications. The ministerial authorizations make it possible for CSE to intercept communications that may cross the border without breaking Canadian law in the process, but they do appear to be (at least potentially) extremely broad in scope, and they have obviously been of some concern to the CSE Commissioners:

CSEC’s foreign intelligence ministerial authorizations are broadly written and apply to methods of collecting foreign intelligence rather than to individuals. However, Commissioners have been of the view that it is not clear that the [National Defence Act] supports such an approach. Commissioners have stated that amendments to the NDA are necessary to clarify ambiguities relating to foreign intelligence ministerial authorizations. Former Commissioner Gonthier also emphasized last year that "the length of time that has passed without producing amended legislation puts at risk the integrity of the review process.”

The report goes on to say that

Commissioner Gonthier was informed by the Minister of National Defence that clarification of ambiguities and other amendments to the NDA are a legislative priority. Pending amendments, Commissioners have continued to use the interim solution of applying a qualified opinion, that is, reviewing CSEC foreign intelligence collection activities under ministerial authorization on the basis of the NDA as it is interpreted by Justice Canada. However, past Commissioners have noted they disagree in certain important respects with that interpretation, which highlights the need for amendments to the NDA.

What is not yet clear is whether the clarifications and other amendments now promised by the Defence Minister will limit those powers in any way or simply make the current broad approach more explicitly legal. It could make for an interesting debate when the proposed changes come before parliament--if they ever do. A quick check shows that "legislative priority" though the issue may be, none of the 46 bills introduced by the government so far in this session addresses the Commissioners' concerns.

Successive CSE Commissioners have been complaining about this question since at least 2005. How many more years will they have to do so?