Tuesday, January 14, 2014

Dog assures Canadians it CAN bite the Man

A new section on the website of CSEC's watchdog, the CSE Commissioner, discusses current concerns about the role and capabilities of the Commissioner and his office (Current Issues: Questions and Answers), addressing questions such as

"How can an agency the size of the Commissioner’s office effectively review the activities of an organization the size of CSEC?"

and

"What impact has review had on CSEC?"

I won't attempt to summarize the entire piece here, but I think it's a useful response to a lot of recent commentary on the role of the CSE Commissioner, which has tended to dismiss the office as almost entirely without value.

My own feeling is that while there are lots of grounds for concern about the effectiveness of the institution (see these comments, for example), much of the work that CSE Commissioners have done has been extremely valuable.

That said, I can't say I find everything in the new section reassuring.

For instance, the Commissioner takes credit for Justice Richard Mosley's recent ruling concerning what are known as CSIS 30-08 warrants.

It was indeed the most recent annual report of the CSE Commissioner that tipped Justice Mosley to re-examine the warrants, as confirmed in paragraphs 54 and 55 of his Further Reasons for Order.

But does this really show that the process is working?

As the annual report notes, the Commissioner recommended to the Minister of National Defence that "CSEC advise CSIS to provide the Federal Court of Canada" with additional information about the involvement of Five Eyes countries in the execution of the warrants, and CSEC apparently did provide such advice to CSIS.

And then CSIS, as far as we can tell, ignored him.

Justice Mosley didn't learn about the problem from CSIS; he learned about it because he happened to read and chose to follow up on the information in the Commissioner's public report.

A lot of the key privacy concerns related to CSEC arise because of CSEC's relationships with domestic law enforcement and security agencies, and here we have a clear example not just of the difficulty CSE Commissioners have in following operational issues when they pass beyond the boundaries of CSEC, but also of the possible indifference those other agencies may have for the "advice" of the Commissioner.

Does this not confirm that there are serious problems with the mandate and/or reach of the CSE Commissioner?

If the Commissioner thinks so, he's certainly not saying it on this webpage.

Another point related to the question of CSIS 30-08 warrants:

Now that James D. Abbott, then CSEC's Acting Director of SIGINT Requirements, has admitted to Justice Mosley that he "crafted" his 2009 testimony in order to avoid providing key information to the court (Mosley para. 76), thus breaching his duty of candour, will the CSE Commissioner be revisiting his conclusion that "CSEC conducted its activities in accordance with the law" in this affair?

Is it legal to deliberately mislead a judge in order to get a warrant approved?

And while we're on the subject, is it legal for CSIS and CSEC to ask Five Eyes allies to monitor the private communications of Canadians on the basis of tainted warrants that, as Justice Mosley has since made clear, didn't even authorize the involvement of non-Canadian agencies? Is it legal even for CSIS and CSEC themselves to monitor Canadians based on tainted warrants?

Maybe the Canadian public needs to withhold judgement on whether this watchdog can bite until they see how it responds in this case.

Another thing:

Why does this Commissioner, like his predecessor, describe the collection of communications with one end in Canada undertaken in the course of CSEC's foreign intelligence activities as "unintentional"?

By law, such communications have to have been selected because one of CSEC's foreign intelligence targets was at the foreign end of the communication (i.e., the Canadian end must not have been the immediate "target" of the collection), but CSEC Chiefs have made it clear on more than one occasion that when one of their foreign targets communicates with someone in Canada, CSEC wants to, can, and does very deliberately collect both ends of that communication. Keith Coulter stated outright here that CSEC sought, successfully, to have the laws pertaining to interception amended in 2001 precisely to permit such communications to be legally collected. There is nothing "unintentional" about it.

There are undoubtedly other occasions when CSEC is actually trying to collect a foreign-only communication but ends up collecting a communication involving a Canadian or person in Canada or information about such people. In those cases, the collection really is unintentional (although that still doesn't necessarily mean it won't be retained and used).

But that's a very different matter from deliberately following the communication of a foreign target into Canada.

Even CSEC doesn't describe the collection of foreign-target-to-Canadian communications as unintentional. (It describes it as "incidental", which is also unnecessarily misleading but at least doesn't suggest that some sort of mistake was made when the communication was collected.)

So why do we get "unintentional" from the guy we're supposed to trust to give us the straight goods?

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