onsdag, oktober 07, 2009

Court decision on Canadian signal intelligence operations

In a Swedish Government Inquiry on signal intelligence for law enforcement purposes (SOU 2009:66), the reporter Anders Eriksson described in his comparative analysis how the Communications Security Establishment Canada (CSE) can collect information through signal intelligence on behalf of the Royal Canadian Mounted Police (RCMP) and the Canadian Security Intelligence Service (CSIS). In a previous post on this blog a reader asked me to investigate if it was true that Canadian law enforcement agencies can ask the CSE to initiate signal intelligence operations. The reader thought that Anders Eriksson was wrong and claimed that I was not critical enough against Erikson's inquiry on this point.

Doing comparative law is always difficult and I had a problem to find the relevant provisions. When searching for the answer I have found the blog Lux Ex Umbra, a Canadian blog solely writing about signal intelligence.

The writer of the Lux Ex Umbra, Bill Robinson, posted a very interesting blog post yesterday on a court decision which confirmed that the CSE can collect information for the CSIS. The application to the Court was filed by the CSIS under section 12 and 21 of the Canadian Security Intelligence Service Act and not the CSE. Now, the CSIS is an intelligence agency and not a law enforcement agency. Many countries have a similar solution where the two functions are separated. In contrast, the Swedish Security Service (SÄPO) is an intelligence agency as well as a law enforcement agency. Would this mean that information collected by the CSE can not be used for law enforcement purposes? As I understand the CSIS shares intelligence with the RCMP, a federal law enforcement agency. I do not know if this case answers the question asked by the abovementioned reader, but it is close. Paragraphs 31-33 of the Court's decision is interesting in this regard. It states the following.

[31] CSE's mandate is set out in the National Defence Act, R.S.C. 1985, c. N-5 as amended by the Anti-Terrorism Act, S.C. 2001, c.41. Under paragraph 273.64(1)(a) of this statute, the agency is authorized to acquire and use information from the global information infrastructure (i.e. communications systems, information technology systems and networks) for the purpose of providing intelligence to the government of Canada. CSE is prohibited under paragraph 273.64(2)(a) from directing these activities at Canadian citizens and permanent residents wherever located ("Canadian persons") or at any person in Canada regardless of nationality.

[32] The limitation respecting Canadian persons or persons in Canada do not apply to technical and operational assistance which CSE may provide to federal law enforcement and security agencies in the performance of their lawful duties... such assistance activities are subject to any limitations imposed by law on the federal agencies in the performance of their duties.
[33] In the context of the present application, therefore, CSE may only assist CSIS to intercept communications and obtain information if CSIS has a judicially authorized warrant under section 21 of the Act.
Thus, it is the CSIS and not the CSE that files the application and has the initiating power. Jim Bronskill of Canadian Press writes the following.
CSE is generally prohibited from spying on Canadians, but it can assist CSIS and police agencies acting under judicial warrants.
Ths should the settle question posed by the abovementioned reader of this blog.
Bill Robinson also discusess on his blog what kind of surveillance was adjudicated by the decision. My impression is that at least parts of the decision concerns signal intelligence intercepted by the CSE. Jim Bronskill of Canadian Press and Colin Freeze of The Globe and Mail explains that the surveillance concerned persons travelling abroad but the interception is in Canada. Paragraph 30 (page 12) states the following. See also paragraphs 38, 40, 44, and 47.
The applicant submits that the acts necessay to permit interception of communications and to obtain information [redacted], with the technical assistance of the CSE, will take place entirely in Canada. The communications wil be heard, or the information obtained [redacted] will be read only in Canada.
For me, it is clear that this decision concerns signal intelligence of international communication crossing Canadians borders which are intercepted in Canada.
Regardless, I find it interesting that the decision is not under seal and that only parts of it is redacted. I hope that the future defence intelligence court in Sweden will adopt a similar policy.

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