Friday, December 06, 2013

Forcese on Mosley on Five Eyes assistance to CSIS/CSEC

Law professor Craig Forcese has written a very useful article explaining why Justice Richard Mosley's 2009 decision (background discussion here and here) concerning the ability of CSIS and CSEC to monitor Canadians abroad did not in Mosley's view authorize those agencies to use the intercept facilities of Canada's Five Eyes allies (Craig Forcese, "Triple Vision Accountability and the Outsourcing of CSIS Intercepts," National Security Law blog, 6 December 2013).

Forcese also discusses the implications for CSIS and CSEC now that Justice Mosley has clarified that "the use of 'the assets of the Five Eyes community' is not authorized under any warrant issued to CSIS pursuant to the CSIS Act. The question of whether CSIS may, with the assistance of CSEC, engage the surveillance capabilities of foreign agencies was not raised in the application that resulted in the issuance of the first such warrant or in any subsequent warrants of this type." [You can read the public version of Mosley's Further Reasons for Order here.]

Forcese comments,
On a substantive level, these developments raise important and intriguing questions.
  • If five eyes assistance was not authorized, and CSEC and CSIS nevertheless sought it, are they still protected from Criminal Code, Part VI culpability? Where Part VI applies, culpability is only avoided where the intercept is lawfully authorized. If the parameters of the warrant were disregarded, does that vitiate the lawful access? I don't know the answer to this question, since it is impossible really to say without knowing more about the communication intercepted and whether it met the pre-requisites of Part VI in the first place.
  • If CSEC and CSIS called on five eyes agencies to intercept communications, was the intercept still territorial, thus satisfying the international law concerns raised in the two warrant applications? It would be the height of shear nonsense for Canada to say: "We didn't violate international law, because we made sure that when our allies sent us the intercept, we first listened to its content in Canada. That made it 'territorial' even though the communication was actually first seized overseas by a foreign spying agency acting at our behest". Outsourcing an international violation does not diminish state responsibility for that international violation. In a different context, that would be like asking bounty hunters to do your kidnapping of fugitives on the territory of a foreign state. Still a violation of international law! (We could quibble about which rules of state responsibility reach this kind of interdelegation of spying, but I don't imagine establishing this responsibility would be much of an uphill battle).

If the answer to question 2 is "yes, there was violation of international law by proxy", then the CSIS/CSEC outsourcing makes a mockery of both Justice Blanchard and Justice Mosley's decisions. I certainly look forward to reading the public versions of the latter.

But whatever the content of this decision, it is screamingly evident that our lawful access rules have not kept pace with the times. I sympathize with CSIS -- it can't be blind just because dangerous Canadians go overseas. And I sympathize with the Courts -- they haven't been given legal tools that make it easy to square the circle between "keeping our eyes open internationally" and "complying with the law". And so I'll end with where I ended in my 2010 article:

The Canadian Federal Court decision [by Blanchard J.] is illustrative [of the pernicious consequences stemming from creative ambivalence of international law on spying]: in that case, CSIS sought to square what it perceived to be its domestic constitutional obligations with its international practices. In so doing, it asked a court to authorize conduct that, from first principles, gave every appearance of violating core precepts of the sovereignty norm, in circumstances where international scholars themselves debate the exact state of the law. The court acted reasonably in erring on the side of caution and refusing to give judicial blessing to conduct that, if revealed, would create thorny problems in international relations.

As noted, it will be no simple thing to overcome this caution by legislative amendment. No Canadian politician – cognizant of Canada’s modest position in the hierarchy of nations – will enthusiastically endorse an amendment that authorizes emphatically what other states only accept tacitly: that extraterritorial spying is permissible.

In the result, CSIS has a choice: conduct extraterritorial spying without recourse to the courts, at risk of ultimately being called to account under domestic law, or honor the Federal Court’s construal of international law (and CSIS’s jurisdiction) and pull in its truly international surveillance operations, potentially blinding the country’s chief security intelligence agency. This is not a happy situation, and it is a consequence at some level of a failure by the international community to extend a legal imprimatur to the reality of international spying.

Three years later, it is probably time for the government to gird itself with courage and think about clarifying the CSIS Act. [End of Forcese quotation]

It sounds like the end product has really hit the fan on this one.

Have CSIS and CSEC been acting unlawfully, albeit perhaps inadvertently, over the last four years?

If so, will the CSE Commissioner actually declare that to be the case, and thus ruin the government's favourite CSEC talking point? ("That independent commissioner has indicated, for the last 16 years, that CSEC has complied with all Canadian laws.")

Will the Federal Court find a new basis for permitting CSIS/CSEC to utilize Five Eyes capabilities for monitoring Canadians abroad? Alternatively, will parliament act to change the law so as to authorize such activities? Presumably the offending acts have been stopped in the meantime. What are the consequences of that? And there's more. Forcese's analysis seems to suggest that when it comes to activities such as actively penetrating foreign communications systems or even the target's own computer when it is located in a foreign country, even Mosley's decision, which permitted CSIS and CSEC to conduct such activities when it is for the purpose of collecting information on CSIS targets, may be on shaky legal ground. (CSEC collection of intelligence on foreign targets abroad would not be affected by this issue, however.) Update 20 December 2013: Added link to the public version of the 22 November 2013 Further Reasons for Order.

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