CSE and Lawful Access After Snowden

Wesley Wark, a visiting professor at the University of Ottawa and one of Canada's foremost experts on intelligence agencies, has written a new working paper on CSE and Lawful Access After Snowden.

The paper covers a lot of ground, but its fundamental purpose is to consider "what the Snowden revelations tell us about the national security and democratic challenges of providing for legitimate access by intelligence services, and in particular by a signals intelligence agency, to communications, including the private communications of Canadians," and to make a series of suggestions for the way ahead.

It begins with a survey of the Canadian-related material in the Snowden documents published to date. It then examines CSE's role, the function of the CSE Commissioner, and various proposals to improve review and transparency regarding the agency's operations. It ends by recommending five factors that the author argues should be considered in future efforts to ensure both lawfulness and democratic legitimacy in CSE's operations:

• "The first consideration is that more attention needs to be paid to the privacy risks attendant on the conduct of CSE’s cyber security mandate, particularly in the context of the potential blurring, as the Snowden CSE documents suggest, of defensive and offensive cyber security operations and the ongoing march of technological change."
• "A second consideration is that for lawful access to be advanced when it comes to CSE SIGINT, there is an absolute requirement to change the laws governing CSE operations and to find [ways] better to keep enabling legislation evergreen, so as to avoid the obsolescence that has crept over the CSE statute since 2001."
• "A third consideration involves a recognition of the need for greater transparency on the part of key actors who can provide a public rationale for the necessity of CSE activities under its mandates."
• "A fourth consideration is that the Canadian discourse on CSE and SIGINT, prompted in large part by the Snowden leaks, must in future include an elaboration and discussion of the value proposition represented by intelligence activities for Canadian security"—i.e., what do Canadians want and expect these activities to achieve?
• "A fifth and final consideration is related to an energized and better informed discussion of intelligence. The Canadian security and intelligence community, and its political masters, need to embrace a doctrine of 'just intelligence.' Such a doctrine could provide a broad guidance framework to ensure the democratic legitimacy of intelligence as well as help ensure an ethical and law‐abiding culture is sustained within intelligence and security agencies."

The proposed "Just Intelligence" doctrine—a suggestion that picks up on earlier proposals by former GCHQ Director David Omand and others—would be modeled on traditional "Just War" theory, but modified for the intelligence context.

This suggestion and the others are explained in greater detail in the text.

All in all, there is a lot to digest in the piece, but it is well worth the read.