Calgary Herald

Court finds CSIS program illegally kept metadata

Spy agency rebuked over secret program

- STEWART BELL

• A previously unknown unit of Canada’s intelligen­ce service has been illegally keeping data unrelated to national security threats, the Federal Court disclosed Thursday.

In a hard-hitting ruling that was partly blacked out, Justice Simon Noël rebuked the Canadian Security Intelligen­ce Service for not telling the court about a secret metadata program launched in 2006.

The Operationa­l Data Analysis Centre was unknown even to the judges who had been issuing the warrants to collect the informatio­n it mined, according to Noël’s ruling.

While CSIS had intended to notify the court and seek its input, that never happened. Judges only learned of its existence recently when CSIS acknowledg­ed what it was doing.

“The CSIS has breached, again, the duty of candour it owes to the court,” Noël wrote, adding that the agency had operated outside its legal authority.

Although the judge ruled retaining the metadata (data derived from the data) was illegal, he did not order its destructio­n.

The ruling was handed down Oct. 4 but was withheld from the public while parts were redacted.

At a news conference after the decision’s release, CSIS director Michel Coulombe said he had halted use of the data while the matter was reviewed.

CSIS had legally acquired the data and thought it was permitted to retain it, he said. “It is now clear that the Federal Court disagrees with this interpreta­tion, a decision which we fully accept.”

But he defended data analytics, saying it had “proven to be an effective tool,” helping to understand and predict the actions of those being investigat­ed over national security concerns.

Public Safety Minister Ralph Goodale said the government would not appeal the decision and would ask the Security Intelligen­ce Review Committee to “monitor the situation carefully to ensure compliance.”

Goodale said he intended to speak to the CSIS executive about Noël’s findings and had taken note of the court’s observatio­n that the CSIS Act was “now more than 30 years old and showing its age.”

The ruling touched on an issue many government­s are struggling to address: amid heightened fears over terrorism, how far can they can intrude into the lives of their citizens in the name of national security?

When CSIS is using its intrusive warrant powers and comes across informatio­n

THERE IS LITTLE OVERSIGHT FOR CSIS’S ANALYTICAL PROGRAMS AND OUTPUT.

unrelated to national security threats, that informatio­n was supposed to be discarded.

But the agency had been indefinite­ly keeping the metadata, using it to gain “insight otherwise impossible to glean,” Noël wrote in his decision.

He acknowledg­ed the raw metadata “consists mostly of numbers,” “may only have limited privacy impacts” and had yielded useful intelligen­ce, creating new investigat­ive leads.

“Having said that, when the numbers and names are put together upon an investigat­ive request, the intelligen­ce product resulting of the analysis may reveal more and therefore have a greater impact in privacy interests,” he wrote.

“I am fully cognizant of the consequenc­es my decision has on the CSIS’s mandate and functions,” he wrote. “Ultimately, the rule of law must prevail; without it, the actions of people and institutio­ns cannot be trusted to accurately reflect the purpose they were entrusted to fulfil.”

Stephanie Carvin, an assistant professor at the Norman Paterson School of Internatio­nal Affairs, said disputes like the one over CSIS data practices may be less likely once the government increases oversight of intelligen­ce agencies under Bill C-22.

“There is little oversight for CSIS’s analytical programs and output. It is my hope that with more oversight in C-22 and other potential reforms that these kinds of incidents will be avoided and analytical functions are given more scrutiny,” she said.

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