Charter Statement mischaracterizes CSE incidental collection

I'm working on a blog post about the oversight and review provisions proposed in Bill C-59, but I just want to make a quick point about this sentence in the Department of Justice's Charter Statement concerning the bill:

Although CSE is prohibited by subsection 23(1) from directing its activities at Canadians or persons in Canada, the practical realities of acquiring information from the [Global Information Infrastructure] means that despite best efforts to avoid it, CSE may incidentally obtain private communications and other private information of Canadians and persons in Canada.

The clear implication of this statement is that CSE uses its "best efforts" to avoid the incidental collection of private communications (i.e., communications that either begin or end in Canada).

This is simply untrue.

CSE is not permitted to target Canadians or persons in Canada*, but it is permitted when operating under its normal foreign intelligence authorizations to collect the communications of such persons incidentally (i.e., when they communicate with a CSE foreign target that is itself located outside of Canada). It collects such communications with deliberate intent, and the measures proposed in Bill C-59 would not change that fact.

(*For the purposes of this discussion, I'm ignoring those cases where CSE collects private communications on behalf of some other federal agency that has already obtained a judicial warrant for that purpose.)

This shouldn't be terribly surprising. If a foreign terrorist located in Afghanistan telephones someone in Canada and CSE happens to be monitoring that terrorist, the Canadian government—and the Canadian public—is going to want the agency to find out which person in Canada took the call and what it was they talked about.

There are differing views as to whether a judge ought to be involved somewhere in that process (the current proposal would introduce a quasi-judicial process), but that's a separate issue.

Prior to the passage of the Anti-Terrorism Act (Bill C-36) in 2001, it wasn't legal for CSE to collect private communications, incidentally or otherwise. Back then the agency really did have to make its best efforts to avoid incidental collection.

In some cases that was very difficult. But in other cases it was more straightforward. CSE could set its collection systems to ignore calls to or from a phone number in Canada, for example, regardless of who the call might connect to outside of Canada.

After 9/11, the prohibition on incidental collection by CSE was no longer considered acceptable. As Defence Minister Art Eggleton testified,

Under the Criminal Code CSE cannot collect communications that include any communications that originate in or terminate in Canada. This seriously limits CSE's ability to provide intelligence on issues that are critical to Canada's national security.

Let me illustrate what I mean. CSE focuses its collection only on foreign entities located outside Canada. This is about the third time I've said that, but I want to emphasize it. If such a target communicates with someone who is located in Canada, CSE cannot intercept the communication, as things presently stand, which means CSE stands to lose the communications of its targets at exactly the moment when they might have the most direct impact on Canada's interests, when they are communicating with someone in Canada. This constraint creates a serious gap in Canada's intelligence capabilities, which in turn affects our ability to collaborate effectively with our allies on intelligence issues. ...

What will the impact of the proposed amendments be on the National Defence Act? Under CSE's present legal framework, if a terrorist in Afghanistan is communicating with an individual in Toronto, CSE is not allowed to acquire that communication. With this amendment, important information that is now lost will become available to Canada and available to our allies in the fight against terrorism. When CSE has identified the communications of a foreign target abroad, it'll be able to follow those communications wherever they go.

And that's just what the agency now does. The "defeats" that sought to prevent the incidental collection of communications with one end in Canada are no longer in place.

There are undoubtedly efforts to avoid the inadvertent collection of private communications that are unrelated to CSE's foreign targets. And there are probably also efforts to minimize the collection of traffic that may be related to legitimate foreign targets but is considered for one reason or another to be unlikely to produce anything of foreign intelligence value, especially if that traffic might also involve Canadians or other persons in Canada at the other end.

But there are no "best efforts"—there is no effort at all—to avoid all incidental collection.

The Department of Justice is either mistaken or dishonest to suggest that "best efforts" are being used to avoid incidental collection.

I'm not sure which is worse.