Tuesday, June 17, 2014

Implications of Supreme Court ruling for CSEC

Law professor Craig Forcese discusses the implications for CSEC operations of the Supreme Court's recent R. v. Spencer ruling ("Why Spencer Changes the Playing Field for CSEC & National Security Spying," National Security Law blog, 17 June 2014):
The decision affirms the views I expressed in my draft article on CSEC and constitutional search and seizure rules (and requires me to shorten and make even more emphatic parts of this article prior to publication). But it goes much further than I thought likely in entrenching constitutional protection for the penumbra of data that surrounds communication. The Supreme Court is prepared to extend section 8 protections to the most benign data -- name and address and telephone number -- associated with an IP address and which everyone appreciates a telecommunication company collects for billing purposes.

It is inconceivable to me that it will now demur when it comes to other, even more intimate forms of metadata created by modern communication -- geolocations, place called, duration of calls, websites surfed etc. While the reasonable expectation of privacy will always depend on the totality of circumstances, I think the constitutional die is now cast when it comes to the sorts of metadata most contentious in the post-Snowden debates.

We don't know, of course, what the government has been in fact collecting under the umbrella of "metadata". Nevertheless, the concept is so broad and Spencer so dramatic, that I assume at least some of what the government has in the past collected in the apparent belief that it does not attract a reasonable expectation of privacy is now subject to the full protections of section 8.

As I discuss in my paper, I do not believe that it matters in the CSEC context that CSEC may be collecting Canadian origin information under its "Mandate A" incidentally, or for a national security purpose. Neither of those concerns is a conventional justification for warrantless searches, nor does either necessitate a judge-free intercept system for any practical purpose.

In this last respect, there is no technical reason why a judge couldn't be tasked with the approval process currently conducted by the minister as part of the ministerial authorization of private communication interceptions. And that authorization could easily be broadened to cover authorizations for all intercepts that trigger section 8, not just "private communication". (As I argue in my paper, I think the latter reaches metadata, but there is not one-for-one overlap in all instances between private communications and section 8's requirements.)

The Lawsuits

Putting CSEC on a constitutional footing will require amendments to the National Defence Act.

More generally, after Justice Blanchard and Justice Mosley's decisions in relation to CSIS extraterritorial surveillance, after Spencer, after Snowden, it is abundantly clear that Canadian national security surveillance law needs legislative renovation. Our national security surveillance laws give every impression of now being a patchwork of untenable theories whose persistence depends almost entirely on them not getting in front of a court. And the era of none of this being fodder for courts is now at an end.
Worth reading the whole piece.


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