NSA spied on G8/G20 summit in Canada

CBC News reports that the NSA spied on the 2010 G8/G20 summit in Canada, and that it did so in close co-ordination with CSEC (Greg Weston, Glenn Greenwald & Ryan Gallagher, "New Snowden docs show U.S. spied during G20 in Toronto: Surveillance during 2010 summit 'closely co-ordinated with Canadian partner' CSEC," CBC News, 27 November 2013):

Top secret documents retrieved by U.S. whistleblower Edward Snowden show that Prime Minister Stephen Harper's government allowed the largest American spy agency to conduct widespread surveillance in Canada during the 2010 G8 and G20 summits.

The documents are being reported exclusively by CBC News.

The briefing notes, stamped "Top Secret," show the U.S. turned its Ottawa embassy into a security command post during a six-day spying operation by the National Security Agency while U.S. President Barack Obama and 25 other foreign heads of state were on Canadian soil in June of 2010.

The covert U.S. operation was no secret to Canadian authorities.

An NSA briefing note describes the American agency's operational plans at the Toronto summit meeting and notes they were "closely co-ordinated with the Canadian partner."

The NSA and its Canadian "partner," the Communications Security Establishment Canada, gather foreign intelligence for their respective governments by covertly intercepting phone calls and hacking into computer systems around the world.

The secret documents do not reveal the precise targets of so much espionage by the NSA — and possibly its Canadian partner — during the Toronto summit.

But both the U.S. and Canadian intelligence agencies have been implicated with their British counterpart in hacking the phone calls and emails of foreign politicians and diplomats attending the G20 summit in London in 2009 — a scant few months before the Toronto gathering of the same world leaders.

Notably, the secret NSA briefing document describes part of the U.S. eavesdropping agency's mandate at the Toronto summit as "providing support to policymakers."

Documents previously released by Snowden, a former NSA contractor who has sought and received asylum in Russia, suggested that support at other international gatherings included spying on the foreign delegations to get an unfair advantage in any negotiations or policy debates at the summit.

The report also questions whether such activities were legal:

"If CSEC tasked NSA to conduct spying activities on Canadians within Canada that CSEC itself was not authorized to take, then I am comfortable saying that would be an unlawful undertaking by CSEC," says Craig Forcese, an expert in national security at University of Ottawa's faculty of law.

By law, CSEC cannot target anyone in Canada without a warrant, including world leaders and foreign diplomats at a G20 summit.

But, the Canadian eavesdropping agency is also prohibited by international agreement from getting the NSA to do the spying or anything that would be illegal for CSEC.

I wouldn't put much credence in the idea that an "international agreement" stands in the way of such co-operation, but the CSE Commissioner did assure Canadians in his 2011-12 Annual Report that "CSEC is prohibited from requesting an international partner to undertake activities that CSEC itself is legally prohibited from conducting."

This question also came up in 2012 when MP Craig Scott submitted a written question asking,

Has Canada ever accepted communications intelligence from one of the traditional "Five Eyes" allies... where that intelligence consisted of communications that took place between persons both or all of whom were within Canada at the time the communications occurred?

Then-Defence Minister Peter MacKay wrote in his formal written response that

The Communications Security Establishment Canada (CSEC) is prohibited by law from directing its activities at any person in Canada or Canadians anywhere, and cannot ask its international partners, including the Five Eyes allies, to act in ways that circumvent this legal restriction.

[Update/edit 11:30 am 28 November 2013: As Craig Forcese points out here,

If you don't yourself have lawful permission to intercept, and you cooperate with someone else to do the intercept, that's called "aiding and abetting" or "conspiracy". That is why in the 5 second excerpt of my 20 minute conversation with the CBC, I say: "If CSEC tasked NSA to conduct spying activities on Canadians within Canada that CSEC itself was not authorized to take, then I am comfortable saying that would be an unlawful undertaking by CSEC."]

MacKay also wrote that

With respect to Five Eyes reporting derived from a communication where both or all communicants were in Canada at the time the communication occurred; in accordance with CSEC's legal mandate CSEC does not pursue the receipt of such intelligence and has clearly expressed its expectations to partner agencies.

I guess we are supposed to believe that CSEC was shocked -- shocked -- to find NSA so blatantly disregarding Canada's clearly expressed expectations when the Americans forwarded the intelligence they collected at the 2010 summit.

MacKay's response is a classic example of why the Canadian public can't believe a single word breathed by CSEC, its spokespersons, or its minister. Everything they say comes with a secret asterisk attached.

As indeed there was to the first part of Minister MacKay's response as well.

CSEC is only "prohibited by law from directing its activities at any person in Canada or Canadians anywhere" when it is operating under the first two parts of its three-part mandate (and even then it may be authorized by the minister to collect communications that involve Canadians). It is not "prohibited by law from directing its activities at any person in Canada or Canadians anywhere" when it is acting under Part (c) of its mandate, i.e., when it is providing support to a Canadian law enforcement or security agency acting lawfully under its own mandate.

Which means that there is a way for CSEC to legally collect foreign intelligence in Canada. As long as CSIS can get warrants under s. 16 of the CSIS Act to target the individuals in question, CSEC can assist in collecting their communications.

Whether those warrants could then be used to authorize NSA to also collect such intelligence is perhaps a question for lawyers and judges to sort out. (Paging Justice Mosley!)

Craig Forcese wrote some interesting and informative comments on the legal aspects of such spying here.

Update 11:30 am 28 November 2013: Forcese has also written a very helpful explanation of what may or may not have occurred during the summit and how the law applies to such activities here.

Update 2 December 2013: CBC has posted the NSA document here. More CBC commentary here: Greg Weston, "NSA document raises questions about Canada in G8 spying," CBC News, 2 December 2013.