Wednesday, November 16, 2005

Suddenly there came a tapping...

On 15 November 2005, the federal government introduced Bill C-74, "An Act regulating telecommunications facilities to facilitate the lawful interception of information transmitted by means of those facilities and respecting the provision of telecommunications subscriber information." The purpose of the bill is to help CSIS, the RCMP, and other Canadian police agencies bring their wiretapping abilities into the internet era.

The proposed law would have no direct effect on CSE or CFIOG (as far as I can tell), but CSE might well end up called upon to assist CSIS or the police in cryptanalysis of some intercepted messages, as they already sometimes are. The law also might facilitate the occasional collection by CSIS of material for CSE.

In any case, it's all moot at the moment. The bill is virtually guaranteed not to pass before parliament is dissolved for the next election, at which point–if the same government is still in power–the bill would have to be reintroduced and start again from scratch.

See the Canadian Press report here: Liberals introduce wiretap bill, Globe and Mail, 15 November 2005.

6 Comments:

Blogger Mark Klamberg said...

Dear Bill,
In Sweden we have a discussion about SIGINT access to cable communication in addition to SIGINT on satellite communication. The Swedish countepart top CSE is the Defence Radio Establishment (FRA-Försvarets Radioanstalt).

One element concerns the relationship between the police and FRA. The current law since one year allows the FRA to hand over intelligence to the Police and the Swedish Security Service (SÄPO). The Police and SÄPO could give the FRA a general instruction what to look for, but the FRA retained considerable control over what specific missions to undertake. This created a lot of controversy and now a proposal to amend the law has been tabled.

The proposal tilts the power over from FRA to the Police and SÄPO. It suggests the SÄPO and the Police to a larger extent should be allowed to initiate SIGINT surveillance by the FRA on communication crossing Swedish borders against external threats. The proposal has made a comparative study and makes references to Canada and the understanding is that the Canadian police and RCMP can intiate the CSE to conduct specific SIGINT operations. Is this correct?

August 10, 2009 3:51 am  
Blogger Bill Robinson said...

Hi, Mark.

Sorry for the delayed response -- I've been away from home.

CSE's three-part mandate includes the mission of providing "technical and operational assistance to federal law enforcement and security agencies in the performance of their lawful duties". These agencies would include the RCMP and CSIS (the security intelligence agency) and a few other agencies, but they would not include most Canadian police forces, which are mostly operated by provincial or municipal governments.

The assistance that might be provided could include technical advice and assistance in areas such as code-breaking and the technology of interceptions, but it could also include actual interceptions (or, potentially, remote computer intrusions).

CSE does not have the facilities to intercept most purely domestic communications, but it is able to monitor communications that cross the Canadian border, so it could certainly collect information of interest to these agencies.

Collection that specifically targets Canadians can only be done through a judicial warrant obtained by CSIS or the RCMP under the auspices of their own legal authorities and procedures. CSE has no power to seek judicial warrants for this or any purpose, but it is permitted to assist the other agencies in their legally mandated activities.

In this sense, at least, it is the agencies that initiate the conduct of such operations and CSE that does their bidding. Whether CSE always responds favourably to a monitoring request is not completely clear (at least to me), however. CSE collection priorities are set by interdepartmental consultation at the level of the Privy Council Office (CSIS and the other agencies participate in the priority-setting but do not control it). Thus, it is at least conceivable that CSE would not perform such an interception if its personnel and facilities were already committed to higher priority operations.

It is worth noting, however, that "security" targets in general currently have the highest priority in CSE's operations.

Cheers,

Bill.

August 17, 2009 5:00 pm  
Blogger Mark Klamberg said...

This comment has been removed by the author.

August 18, 2009 5:01 am  
Blogger Mark Klamberg said...

Dear Bill,
Thanks for the answer! I have been trying to find the answer in Canadian legislation.

You write:
"Collection that specifically targets Canadians can only be done through a judicial warrant obtained by CSIS or the RCMP under the auspices of their own legal authorities and procedures. CSE has no power to seek judicial warrants for this or any purpose, but it is permitted to assist the other agencies in their legally mandated activities.

In this sense, at least, it is the agencies that initiate the conduct of such operations and CSE that does their bidding."

Do you know which are the relevant Statute and provision(s) that provide this? The reason why I ask is that Canada is used as an example in the Swedish debate and some question that CSE does the bidding of agencies such as RCMP and CSIS.

August 18, 2009 5:09 am  
Blogger Mark Klamberg said...

By the way.

For the purpose of a conference in Copenhagen September 2009, I have prepared a presentation about the FRA and Swedish COMINT in English. Here is a link.

August 18, 2009 5:32 am  
Blogger Bill Robinson said...

Hi, Mark.

Canada had no law againt the interception of communications until 1974, when sections 183-196 (Part VI - Invasion of Privacy) were added to the Criminal Code. This part of the Criminal Code makes it a crime to intercept "private communications" in Canada (including cross-border communications; communications outside Canada remain fair game), with certain exceptions, notably that "peace officers" can legally intercept communications if they obtain a judicial warrant to do so. All Canadian police forces, including the RCMP, are covered by this provision. It also makes it legal for any person to assist a peace officer in carrying out a legal interception. This provided a legal basis for CSE to conduct intercepts for the police. The Canadian Security Intelligence Service (CSIS) did not exist at the time; its predecessor was the RCMP Security Service, which was covered by the peace officer exception.

CSIS was created in 1984. The CSIS Act, which created the agency, includes provisions making it legal for CSIS to intercept private communications after obtaining a judicial warrant and also for other persons to assist CSIS in this activity.

In 2001 the National Defence Act was amended to place CSE on a statutory footing for the first time. Part V.1 of that act spells out the mandate and powers of CSE. One of CSE's three mandated tasks is to "provide technical and operational assistance to federal law enforcement and security agencies in the performance of their lawful duties." Note that this refers to "federal" agencies. Most provinces and municipalities have their own police forces, which are not agencies of the federal government. But the RCMP and CSIS (and other lesser known federal agencies) are covered by this provision.

As far as I can tell, these three statutes (Criminal Code, Canadian Security Intelligence Service Act, National Defence Act) set out the legal parameters of CSE collection of private communications. The statutes can be found here:
http://laws.justice.gc.ca/en/BrowseTitle

September 19, 2009 1:49 am  

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