In scathing ruling, Federal Court says CSIS bulk data collection illegal

Posted on in Governance Policy Context

TheGlobeandMail.com – News/National
Nov. 03, 2016.   COLIN FREEZE

The Federal Court of Canada faulted Canada’s domestic spy agency Thursday for unlawfully amassing data, for misusing its surveillance warrants and for not being forthright with judges who authorize its intelligence programs. The court is also revealing that CSIS no longer needs warrants to collect Canadians’ tax records because of changes wrought by Bill C-51.

The matter was said to involve the decade-long collection of volumes of data within the Canadian Security Intelligence Service’s little-known Operational Data Analysis Centre, which the judges who scrutinize CSIS are characterizing as a hidden and unlawful repository of data amassed by the spy agency.

The centre and the data within it are so secret that the Federal Court – which authorizes CSIS wiretapping bids – had no idea they existed.

“The Court had never before been fully informed of the existence of the program. The Court, during the hearings, learned that the program had been in existence since 2006 yet it had never heard nor seen any evidence on the matter,” reads a partly redacted new ruling from Federal Court Judge Simon Noël.

These judges took the rare step of meeting collectively several times in 2016 to grill CSIS officials about their wiretap warrants and whether the service was being forthright enough in making them.

This is a scathing ruling on several levels. It is the second time in three years that senior Federal Court judges who approve CSIS programs have publicly said they cannot keep tabs on what the spy agency is doing because its intelligence officers are breaching their “duty of candour” with the court. The judges further reveal that controversial 2015 Conservative legislation, Bill C-51’s Security of Canada Information Sharing Act, eased information flow between government departments to the point that “CSIS no longer needs a warrant to obtain information from the Canada Revenue Agency.”

Public Safety Minister Ralph Goodale is currently consulting with Canadians on whether he needs to change the laws under which CSIS operates. He is also pitching Parliament on a new committee of MPs who could be given powers to investigate intelligence agencies.

CSIS exists to advise the Prime Minister about threats to national security. It can potentially collect much greater amounts of data, about more people and more entities, than any police agency can, given it works under lower legal thresholds of intelligence investigations that are never intended to be discussed publicly. Its relationships with Canadian telecommunications companies and other Canadian government departments have always been murky.

Elsewhere, however, spy agencies are also falling under fire for collecting data in bulk quantities, and for gathering information about everyone in hopes of deducing patterns that speak to where terrorists could be. For example, the U.S. and British counterparts of CSIS have lately been faulted by their own watchdog agencies for indiscriminately amassing material relating to citizens’ phone logs, taxation records and passports, in hopes that such records might be useful to intelligence analysts.

The Federal Court of Canada documents released Thursday say CSIS has been unlawfully amassing “associated data” – a term that appears to refer to telecommunications metadata such as phone logs and e-mail trails. Under its foundational legislation passed in 1984, CSIS is entitled to collect only information that is “strictly necessary” to collect, but Federal Court judges who sign off on warrants now say the spy agency is not living up to this law.

“CSIS had an obligation, beginning in 2006, to fully inform the Court of the existence of its collection and retention of associated data program. The CSIS also had the duty to accurately describe this program to the Court,” reads the Federal Court statement. It added that “the Court concluded that the retention of associated data … falls outside the CSIS’s legislatively defined jurisdiction” and “that therefore this retention of associated data is illegal.”

Some of these criticisms align with ones previously made by a federal watchdog agency, which had already publicly complained that CSIS rarely lets go of any phone logs and Internet-transaction data it collects.

This fall, the Security Intelligence Review Committee criticized CSIS for going beyond its “strictly necessary” collection mandate by “ingesting bulk data sets” in bids to predict patterns of terrorism. The previous year, SIRC faulted CSIS for indefinitely holding on to telecommunications metadata it gathers in the course of wiretapping investigations, alleging CSIS was likely legally obliged to destroy such material.

SIRC has recommended that CSIS reconsider these practices or at least tell the Federal Court about them. But CSIS’s written response was that it did not need to tell the Federal Court what it was doing.

“The Service did not agree with SIRC’s recommendation to advise the Federal Court of activities relating to metadata collected under warrant. CSIS’s position is that … the CSIS Act does not confer any general supervisory authority to Federal Court judges, therefore, it believes that SIRC’s recommendation was both inappropriate and unwarranted,” was the spy service’s position at the time, according to the report.

The Federal Court has now signalled it disagrees with this assessment. In recent years, CSIS’s collection capabilities are thought to have been vastly increased by co-operation warrants that exist with the Communications Security Establishment, a federal spy agency that dredges global telecommunications data in bulk. CSE’s headquarters are now located beside CSIS’s headquarters.

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