Friday, August 23, 2013

CSE Commissioner's report raises legality questions

Outgoing CSE Commissioner Robert Decary's 2012-2013 annual report has raised questions about the legality of some of CSE's monitoring activities involving Canadians.

The Commissioner does not state that the activities were unlawful, but he does declare that because of incomplete records, he is not able to determine whether the activities broke the law or not. The report was tabled in Parliament by Defence Minister Rob Nicholson on Wednesday, while Parliament is conveniently not in session.

More details here (Lee Berthiaume & Jason Fekete, "Canadians may be victims of illicit spying," Postmedia News, 22 August 2013):
Canada’s super-secret electronic spy agency may have illegally targeted Canadians over the past year, a government watchdog has concluded.

The findings, contained in a report tabled by retired judge Robert Decary in Parliament Wednesday, are particularly explosive now given revelations prompted by whistleblower Edward Snowden about the U.S. government conducting widespread snooping of its citizens.

Decary, who has served as independent watchdog for the Communications Security Establishment Canada (CSEC) since 2010, said he discovered the potentially illicit spying during a routine review of the electronic surveillance agency’s activities over the past year.

“A small number of records suggested the possibility that some activities may have been directed at Canadians, contrary to the law,” Decary wrote in his report.

But Decary said he was unable to determine conclusively whether the snooping was legal or not because “a number of CSEC records relating to these activities were unclear or incomplete.”

“After (an) in-depth and lengthy review, I was unable to reach a definitive conclusion about compliance or non-compliance with the law.” ...

Decary has also completed a study into whether CSEC has pressed its American, British, Australian and New Zealand spy agency counterparts to respect long-standing promises not to snoop on Canadians.

That could shed light on what Canadian authorities knew about a massive telephone and Internet surveillance program in the U.S. called Prism.

However, it was not included in his report Wednesday because of an administrative error. ...

Decary also slammed the Conservative government for dragging its heels on implementing what he says are badly needed changes to the National Defence Act that will fix ambiguities in the legislation.

Following the Sept. 11, 2001 terrorist attacks in the United States, the federal government adopted the Anti-terrorism Act, which amended the National Defence Act and created legislative frameworks for both the commissioner and CSEC.

Repeated CSEC watchdogs have said clarification is needed to terms and definitions related to CSEC’s legislated authority, which would assist them in interpreting CSEC’s mandate and reviewing how it is applied.

“I started my mandate with the expectation that the legislative amendments to the National Defence Act proposed by my predecessors would soon be introduced in Parliament, but this has yet to happen,” Decary wrote in his report.

“I am deeply disappointed at the lack of action by the government, which is no longer in a minority situation, to address the ambiguities identified by my predecessors and myself.

“These amendments — as I have said many times before — would improve the provisions that were hastily enacted in the aftermath of September 11, 2001. The proposals to address the issues raised by commissioners should not, in my opinion, be controversial.”
CSE, unsurprisingly, assures us that no laws have been broken (Douglas Quan, "In wake of spying allegations, Communications Security Establishment Canada insists it didn’t break law," Postmedia News, 22 August 2013):
Ryan Foreman, a CSEC spokesman, said Thursday that the records in question dated back to the early 2000s and were related to spy activities directed at a “remote foreign location.”

“This conclusion does not indicate that CSEC has acted unlawfully,” Foreman said. “It indicates that certain material upon which the commissioner would have relied for his assessment was incomplete or not available for a number of reasons.”

Foreman said CSEC has since upgraded several of its systems to store and retain information better.
We are also, of course, given the misleading boilerplate assurances:
The agency is forbidden from spying on Canadians no matter where they are in the world. It is also prohibited from eavesdropping on individuals within Canada.

“CSEC respects this prohibition,” Foreman said.

Julie Di Mambro, Nicholson’s spokeswoman, echoed that statement, saying in an email that the privacy of Canadians is of “utmost importance.”

“CSEC is prohibited by law from directing its activities at Canadians anywhere in the world or at any person in Canada,” she said.
Everyone please repeat after me.

CSE has a three-part mandate. When acting under the first two parts of this mandate the agency is forbidden from directing its activities at Canadians and persons in Canada. But when it is acting under the third part, provision of support to security and law enforcement agencies, it can indeed monitor Canadians, as long as those agencies have the lawful authority themselves to do so.

Alles klar? Excellent.

I do not understand why these spokesthings think we will be more reassured if they tell us obvious lies. And, yes, telling half-truths with the intent of misleading is LYING.

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