Thursday, November 28, 2013

Foreign intelligence collection and s.16 of the CSIS Act

Craig Forcese has written a very interesting and informative explanation of the legal regime applicable to whatever was or wasn't done by NSA and CSEC at the G8/G20 summit in 2010. It's great to have such an informed source commenting on these questions.

One of the key aspects he discusses is whether a judicial warrant obtained by CSIS under s.16 of the CSIS Act might provide a lawful basis for CSIS and by extension CSEC or even NSA to monitor foreign leaders and diplomats at the summit.

Forcese comments,
Where and when a Federal Court judge will issue a "section 16" warrant is totally a mystery to me. The one public case (of which I am aware) relating to a section 16 warrant has nothing to do with the sort of facts we are playing with in this scenario.

I have not had time to review the legislative history of s.16 and I'm sure I'm naive. But I confess, I have a lot of difficulty imagining CSIS coming to Federal Court and persuading a judge to authorize spying done by or in part by a foreign intelligence service operating in Canada and targeting foreign leaders at an international conference, in order to gather information on, say, negotiating positions so that NSA can support US policy objectives. That is a whole lot of bridges to cross.
I wouldn't want to wade into the question of whether a CSIS warrant might be extended to include the NSA (although if Justice Richard Mosley's experience is any guide, one might doubt whether that little detail was actually placed before the court in 2010).

But I think I can comment a little on other activities that have almost certainly used s.16 warrants.

It is well known (although not of course officially admitted) that CSEC and CSIS monitor the communications in and out of numerous embassies in Ottawa, including communications that take place entirely inside Canada.

For example, CSEC whistleblower Jane Shorten told CTV News in November 1995 that, among others, CSEC was monitoring the communications of the Mexican, South Korean, and Japanese embassies in Ottawa. According to Maclean's, during the early 1990s, "[Shorten’s] tasks changed to include monitoring all telephone and fax traffic in and out of the South Korean Embassy in Ottawa, which included conversations of locally hired Canadian staff. ‘That’s where I drew the line,’ says Shorten. ‘I said “Look, this is Canadian content now,” because anyone could phone up the South Korean Embassy and I would have it on tape.’" (Nomi Morris, “Inside Canada’s Most Secret Agency,” Maclean’s, 2 September 1996, p. 33)

Another whistleblower, Mike Frost, has also stated that embassy communications were being monitored by CSEC.

[Update 11 December 2013: More recently, monitoring of the communications of the Chinese Embassy may well have initiated the recent espionage investigation concerning Qing Quentin Huang. According to the National Post (Stewart Bell, "Undercover sting operation led to arrest of Canadian accused of trying to pass secrets to China," National Post, 1 December 2013), "The Canadian Security Intelligence Service notified the RCMP... that Mr. Huang had allegedly contacted the Chinese embassy in Ottawa to offer up the sensitive documents, several sources said."]

In 1991, reporter Peter Moon described the legal mechanics of these activities as they pertained to monitoring the Soviet Embassy:
Sources said a warrant is reissued annually by a judge to provide a legal basis for the round-the-clock surveillance on the Soviet embassy. CSIS then subcontracts most of the surveillance work, much of it of a highly technical nature, to the CSE. The CSE assists in the collection of any electronic messages sent to or from the embassy or by its staff, including telephone, cable, Telex, radio and facsimile messages. It also tries to collect information given off by electromagnetic emissions from electronic equipment in the embassy, such as computers, printing machines and electric typewriters, sources said. (Peter Moon, "Agency tackles foreign missions," Globe and Mail, 29 May 1991, p. A6)
As far as I can tell, this passage can only be referring to s.16 warrants.

If s.16 warrants are routinely provided to enable the interception of the communications of foreign diplomats located in Canada, and those warrants cover communications that take place entirely within Canada as well as cross-border communications, then it seems to me that it should not be a surprise if s.16 warrants are also issued to authorize collection of the communications of foreign leaders and diplomats temporarily located in Canada, as at the 2010 summit.

Whether CSIS/CSEC can then further subcontract some or all of that collection to NSA and possibly other partners, such as GCHQ, is of course still a crucial question.

Perhap Justice Mosley might like to take that question up too.

Update 29 November 2013: Note CSEC Chief John Forster's comments in this CBC piece (Laura Payton, "Top spy won't answer questions about G20 surveillance," CBC News, 28 November 2013):
"I can't comment in detail on the intelligence operations or capabilities of ourselves or our allies. What I can tell you is that CSEC, under its legislation, cannot target Canadians anywhere in the world or anyone in Canada, including visitors to Canada," Forster said Thursday morning outside the House defence committee.

"We would only do so if we were assisting a law enforcement agency in Canada under a warrant, etc. To do otherwise would be against the law. Further, we cannot ask our allies to do any kind of operations that we ourselves are not permitted to do under law," he said, adding that the commissioner who reviews CSEC has found the agency acts "within the law."
Technically, use of a CSIS Act warrant would fall under Forster's "etc." comment, as CSIS is not a law enforcement agency. But his remarks pretty much tell the tale: CSEC can't spy within Canada (for the most part) except when it is acting in support of another agency's warrant, in which case it can. Did CSEC act "within the law" when it (apparently) spied on the G20 summit? I see little reason to doubt that it did. Let's recall that it's the government that writes these laws, and that at least sometimes it knows exactly what it's doing when it writes them.

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