Electronic spies lack government oversight

OTTAWA— Canada’s electronic spies can assist CSIS with the agency’s new mandate to disrupt security threats with little oversight from politicians or the courts, documents obtained by the Star show.

The Communications Security Establishment (CSE) told Defence Minister Harjit Sajjan last November they can aid CSIS with new “threat reduction” efforts — a power granted to the agency under Bill C-51. It’s not unusual for CSE to lend a hand to police or intelligence agencies; in addition to electronic espionage and cyber defence, assistance to law enforcement is one of the agency’s core mandates. But that assistance often requires a warrant.

But under C-51, CSIS can take action to reduce threats to national security without a warrant — so long as the agency’s efforts don’t violate Canadian law or charter rights.

CSE confirmed that they do not necessarily need a court’s approval to assist CSIS in threat reduction. The new power has opened the door for CSE to act as a “virtuous hacker” for CSIS, according to national security researcher Craig Forcese.

“This was the sleeper in C-51, because CSE is barely mentioned in C-51,” said Forcese, a vocal critic of the new terrorism law. “CSE has been a watcher . . . It has not been able to do things kinetically to people. But under the umbrella of CSIS assistance, it can now go kinetic.”

The power to reduce or “disrupt” threats to Canada’s national security was one of the most controversial aspects of the previous Conservative government’s anti-terrorism law.

Previously limited to collecting intelligence on possible threats and referring files to police, CSIS can now directly intervene in order to reduce threats. What activities the agency can actually take are not listed — C-51 only prevents CSIS from inflicting bodily harm, violating someone’s sexual integrity or obstructing justice.

For intrusive disruption activities, such as bugging a phone or intercepting online communications, CSIS is still required to get a warrant.

But that still leaves a wide range of activities the spies can undertake to reduce threats. CSIS is required only to periodically report to the minister of public safety the number of threat reduction activities taken by the service. While the documents prepared for Sajjan note that C-51 “does not change CSE’s legislation or authorities,” the agency does note the bill expands information-sharing among government agencies.

“Further, all restrictions imposed on CSE in the National Defence Act still apply . . . such as taking measures to protect the privacy of Canadians,” the documents state.

A spokesperson for Public Safety Minister Ralph Goodale noted that the Liberals have promised to revisit some of the more controversial aspects of the bill, but did not address the specific question of CSIS-CSE co-operation.

“(The government) will launch broad, public consultations on our national security framework to ensure that our police and security agencies are being effective at keeping us safe, and that our values, rights and freedoms are being respected,” Scott Bardsley wrote in a statement.

“We want to hear from parliamentarians, from subject-matter experts, from the general public and from foreign partners . . . We’ll listen to Canadians and we’ll produce a truly Canadian model that will work well for us.”

What specific actions CSE can undertake for CSIS without a warrant is not clear. According to Forcese, tampering with a suspect’s laptop or snooping on their online activity would likely still require a judge to sign off.

But Forcese laid out a scenario where CSIS is attempting to interview someone overseas, and enlists CSE to track them down.

Potentially, that could be done without anybody but the two agencies being aware.

“You can see there are going to be circumstances that arise where either they don’t need a warrant, clearly, or it’s uncertain whether they need a warrant,” Forcese says. “I’m most interested actually in circumstances where it’s uncertain if they need a warrant, whether CSIS is going to be conservative or aggressive on that point.”