Monday, October 05, 2015

CSE-related items in the Liberal platform

The Liberal Party released its election platform document today. Called A New Plan for a Strong Middle Class, the 88-page document actually covers a wide range of policy questions, including security and defence issues and democratic reform initiatives, a number of which are directly relevant to CSE.

Most notably, the plan calls for "legislation that will, among other measures... limit Communications Security Establishment’s powers by requiring a warrant to engage in the surveillance of Canadians" (p. 53).

What this is intended to mean is not entirely clear.

Under the current legal regime, CSE is prohibited from "directing" its activities at Canadians or persons in Canada except when it is acting in support of a federal law enforcement or security agency that has the legal authority for such surveillance, which in the case of the interception of private communications would be a warrant signed by a Federal Court judge. However, CSE does have permission to monitor the private communications of Canadians or persons in Canada "incidentally" in the course of its foreign intelligence gathering and cyber security activities as long as those activities are not directed at Canadians and it has been granted an authorization for such activities by the Minister of National Defence.

Based on a less-than-clear response by Liberal leader Justin Trudeau during an interview today, Vice News concluded that the Liberals are proposing to expand CSE's surveillance powers in order to enable it to directly target Canadians' communications even when it is not operating in support of a domestic security agency (Hilary Beaumont & Rachel Browne, "Liberal Leader Would Give New Powers to Canada's NSA," Vice News, 5 October 2015). [But see below.]

It seems more likely, however, that the Liberal plan is simply to replace the existing ministerial authorization regime for incidental collection with a system of judicial warrants. Part 1 of Bill C-622, Liberal defence critic Joyce Murray's recent private member's bill, called for the creation of just such a system; presumably the Liberal promise is that this proposal would be implemented by a Liberal government.

It is worth noting, however, that Murray's proposal did not address the question of judicial control over the collection and analysis of metadata pertaining to Canadians. Should metadata activities also be subject to some kind of warrant regime? [Update 9 December 2015: Actually, I think the bill's definition of "protected information" does include metadata.] The platform document does not indicate what position a Liberal government would take on this issue.

[Update 6 October 2015: The Vice News article was rewritten overnight. It now states that
The Liberal Party has contended that the change referred to in the platform document actually emulates legislation introduced by the party that would move authorization from the minister's office, to the courts.

The change, tucked inside a private member's bill from Liberal MP Joyce Murray, would mean the courts — not the minister — would approve CSE surveillance that captures Canadians' communications.

That change would, indeed, limit CSE's power by adding judicial oversight. The change proposed by Murray still would have no impact on CSE's primary barrier — that it cannot surveil Canadians. VICE News is awaiting further clarification from the Liberals on the policy.

(Hilary Beaumont, Rachel Browne & Justin Ling, "Liberal Leader Would Change When Canada’s NSA Could Spy," Vice News, 5 October 2015)
Update to the update: Retitled Liberal Party Says They Will Not Expand Powers for Canada’s NSA, the article now reports that
a statement from Liberal Party spokesperson Cameron Ahmad sent to VICE News on Tuesday morning indicates that the party was referring to an existing CSE authority and that — despite the language in the platform — surveilling Canadians is not part of the plan.

"In some cases, it only takes a ministerial order to approve the collection of Canadians' information," reads the statement. "Our position is clear: we would limit CSE's powers by forcing the defence minister to obtain a warrant from a judge, shifting to a much stronger standard of oversight, accountability, and responsibility." It adds: "Liberals have long been calling for robust oversight of our security agencies. We are not proposing to expand the authority of CSE."]
Also relevant to CSE is the Liberal platform's promise to "conduct a thorough review of existing measures to protect Canadians and our critical infrastructure from cyber-threats." (p. 71).

CSE's part in such activities is currently limited to the provision of "advice, guidance and services to help ensure the protection of electronic information and of information infrastructures of importance to the Government of Canada", which includes government systems and those supporting some critical infrastructure, but not those of the average Canadian. In fact, no one in government seems to be responsible for protecting average shmucks like us, other than by offering very general advice that is demonstrably inadequate against the capabilities of other nations' intelligence agencies or even sophisticated hackers. "Sauve qui peut!" Thanks a bunch, government. Maybe the Liberal proposal will encourage reconsideration of this situation.

Finally, the platform promises to improve parliamentary oversight (or, technically, review) of CSE and other national security agencies:
We will deliver stronger national security oversight. At present, Parliament does not have oversight of our national security agencies, making Canada the sole nation among our Five Eyes allies whose elected officials cannot scrutinize security operations. This leaves the public uninformed and unrepresented on critical issues.

We will create an all-party committee to monitor and oversee the operations of every government department and agency with national security responsibilities." (p. 31-32)
This committee, which was also promised in the Liberals' A Fair and Open Government manifesto released in June, presumably would be similar or identical to the "national security committee of parliamentarians" proposed by the Martin government in Bill C-81 on 24 November 2005. That bill died when the Martin government fell four days later, but a similar bill has been put forward as private member's legislation by Liberal MPs on a number of occasions since, most recently as Part 2 of Murray's Bill C-622.

Update 14 October 2015: You can read a comparison of the Liberal, NDP, and Conservative positions on these issues here: Matthew Braga, "Where Canada's Three Political Parties Stand on Cybersecurity and Surveillance," Motherboard, 9 October 2015.

Update 17 October 2015: Wesley Wark, "National Security: The Election Issue that Wasn’t," CIPS blog, 16 October 2015.


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