Canada's digital spy agency tracking your online downloads

The CBC (CSE tracks millions of downloads daily: Snowden documents - Canada - CBC News) and the Intercept (Canada Casts Global Surveillance Dragnet Over File Downloads) have jointly broken a huge story about mass internet surveillance led by Canada at a breathtaking scale.

In short, Canada's Communications Security Establishment (CSE) has been tracking traffic to and from over 100 file sharing sites. They can do this because they are tapping some of the principal arteries of the internet, over which your most sensitive and mundane information flows. When they see traffic to a questionable document, they try to find out as much about the person retrieving the document as possible. To do this, they dip into databases of information and profiles of millions (if not billions) of internet users created by them and their other Five Eyes partners. Correlating all this information, they may be able to link the download of a file to an individual. Though the presentation released by the CBC and the Intercept only refer to terrorism related documents, this is something CSE and its partners can do for any file shared on any one of these sites. The presentation actually refers to filtering out episodes of Glee. If you used one of these file sharing sites to download Glee, they would have been able to track you down as easily.

Of course, when asked to comment, CSE had its usual PFO:

"CSE is clearly mandated to collect foreign signals intelligence to protect Canada and Canadians from a variety of threats to our national security, including terrorism," agency spokesman Andrew McLaughlin wrote in an email to CBC.

This is another example of completely suspicionless dragnetting of internet traffic that should cause all Canadians to be concerned. Gravely concerned. My information and your information is in the databases of internet users that the Five Eyes partners have created. During the the time in question, I had clients who used these services to share large documents with me that are subject to solicitor client privilege. This data was swept up in their system and their assurances that they didn't look at it offers me no comfort.

Mass, suspicionless surveillance is not OK and has to stop.

Appeals Court upholds decision that CSIS lawyers lied to the court to obtain warrants to spy on Canadians outside of Canada

The Federal Court of Appeal has confirmed the decision by Justice Moseley which found that CSIS and the Department of Justice had lied and withheld material evidence in order to get warrants under the CSIS Act to surveil Canadians outside of Canada. (X (Re), 2014 FCA 249) I wrote about the decision under appeal here: Canadian intelligence agencies lied to obtain warrants, Federal Court judge says.

In summary, Justice Mosley had found that the Department of Justice lawyers, acting for CSIS in various warrant applications, had withheld information from the Court in order to get warrants under the CSIS Act. What they withheld was that they would get one or more of their Five Eyes partners to do the spying for them. Justice Mosley had found that the CSIS Act (and customary international law) did not permit the Court to grant a warrant that would effectively authorize the intelligence service to violate the laws of wherever the spying was to take place. (This last part has been addressed in proposed amendments to the CSIS Act in Bill C-44.)

The Federal Court of Appeal agreed with Mosley J that DOJ lawyers did not meet the standard expected and required on an ex parte application:

[66] On this evidence we are satisfied that once the decision was made to routinely seek the assistance of foreign agencies after the issuance of a DIFTS warrant, the duty of candour and utmost good faith required that CSIS disclose to the Federal Court the scope of its anticipated investigation, and in particular that CSIS considered itself authorized by section 12 of the CSIS Act to seek foreign agency assistance without a warrant. CSIS failed to make such disclosure.

On the question of spying outside of Canada, the Court of Appeal did not reach the same conclusion as Mosley J. The Service is authorized to conduct activities at home and abroad. In general, the Court can authorize intrusive activities outside of Canada, but there was not sufficient information in the record before the Court to decide about its ability to authorize activities that would violate the laws of another jurisdiction:

[90] Here, we emphatically endorse the submission of the amicus that the question of whether the Federal Court had jurisdiction to issue a warrant authorizing the Service to lawfully intercept the communication of Canadians abroad (through the agency of CSEC and another country) was not before Justice Blanchard. Further, we see no legal impediment to the issuance of such a warrant. Thus, for example, the Federal Court could issue a warrant where the interception authorized by the warrant is in accordance with the domestic law of the state in which the interception takes place.

[91] What Justice Blanchard found was that the Federal Court lacked jurisdiction to issue a warrant that authorized activities in another country that CSIS conceded would violate the laws of that country. This issue does not properly arise on this record and cannot be decided on the record before us.

.... [96] It is for another day on another application with a more fully developed record for the Federal Court to consider whether in the national security context, section 21 warrants necessarily have a sufficient real and substantial link to Canada that the Court may issue a warrant that authorizes intrusive extraterritorial activity without offending the principle of comity and principles of international law.

The Court of Appeal did seem to accept that CSIS or CSEC could engage one of the other Five Eyes intelligence agencies to carry out the surveillance on its behalf.

According to the Canadian Press, the government is looking to appeal this to the Supreme Court of Canada.

Here is some additional coverage: Appeal Court upholds ruling CSIS kept judge in the dark on foreign spying.

CSEC spies on Canadians 'incidentally' to its mandate (but deliberately when helping other agencies)

The Communications Security Establishment of Canada (CSEC) has said, in a new informational website meant to be more transparent, that it sometimes "incidentally" intercepts the communications of Canada when fulfilling its mandate, though it often deliberately does so when assisting other agencies.

However, in the course of targeting foreign entities outside Canada in an interconnected and highly networked world, it is possible that we may incidentally intercept Canadian communications or information. The National Defence Act acknowledges that this may happen and provides for the Minister of National Defence to authorize this interception in specific circumstances. If a private communication is incidentally intercepted (e.g. a foreign individual we are targeting overseas is communicating with someone in Canada), CSE takes steps to protect the privacy of that information.

The website also has a reasonably clear page on the assistance they provide to federal law enforcement and security agencies.

The Ottawa Citizen is reporting on this (Spy agency admits it spies on Canadians ‘incidentally’) as well as the recent Federal Court decision that found CSIS and Department of Justice lawyers deliberately misled the Court in order to obtain warrants.

It's heartening to see that Michael Geist and Tamir Israel share my feelings about that case and are also calling for an independent review of the conduct of those involved.

Canadian intelligence agencies lied to obtain warrants, Federal Court judge says

In what can only be called a stunning decision (IN THE MATTER OF an application by [xxxxx xxxxxx ] for a warrant pursuant to Sections 12 and 21 of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23, 2013 FC 1275 [PDF]), a judge of the Federal Court of Canada has concluded that Canadian intelligence agencies essentially lied to the court in order to get warrants that never would have been granted had they exercised the appropriate level of candor. In addition, they sought to have other members of the "Five Eyes" group carry out surveillance of Canadians that they would have been prohibited from doing themselves.

The Ottawa Citizen does a great job summarizing the decision and its impact: CSIS asked foreign agencies to spy on Canadians, kept court in dark, judge says. It also includes good insights from national security law expert Craig Forcese at the University of Ottawa.

Some extracts from the decision:

“I am satisfied that a decision was made by CSIS officials in consultation with their legal advisers to strategically omit information in applications for 30-08 warrants about their intention to seek the assistance of the foreign partners. As a result, the court was led to believe that all of the interception activity would take place in or under the control of Canada.”

“The principle of comity between nations that implies the acceptance of foreign laws and procedures when Canadian officials are operating abroad ends where clear violations of international law and human rights begin. In tasking the other members of the Five Eyes to intercept the communications of the Canadian targets, CSIS and CSEC officials knew ... this would involve the breach of international law by the requested second parties.”

“There is nothing in any of the material that I have read ... that persuades me that it was the intent of Parliament to give the service authority to engage the collection resources of the second party allies to intercept the private communications of Canadians.”

“It must be made clear, in any grant of a 30-08 warrant, that the warrant does not authorize the interception of the communications of a Canadian person by any foreign service on behalf of the service either directly or through the assistance of CSEC.”

“There must be no further suggestion in any reference to the use of second party assets by CSIS and CSEC, or their legal advisers, that it is being done under the authority of a (section) 21 warrant issued by this court.”

The Citizen also obtained the following unsurprising reactions from CSIS and CSEC, which I would also say don't live up to any reasonable interpretation of "candor":

CSIS: “Protecting Canada’s national security interests in today’s globalized world is increasingly challenging, with little margin for error, especially in matters of counterterrorism. The international character of terrorism means that security is more than ever a shared effort. Everything that CSIS does, alone or with trusted partners, is consistent with Canadian law and Canadian values.

“We understand that protecting Canada’s national security interests is not just an important mandate but a sensitive one. As an organization, we are always looking to become more effective as we adapt to increasingly complicated threat environments.”

CSEC: “We will be reviewing this decision carefully. CSE may only conduct intelligence activities in Canada under its mandate to provide assistance to federal law enforcement and security agencies upon request. These activities respect Canadian laws and Canadian values, and are conducted under the requesting agency’s legal authorities, such as any applicable court warrant. CSE is bound by and must respect any limits in those authorities. All CSE activities are subject to review by the CSE commissioner, who for 16 years has reported that CSEC continues to act lawfully in the conduct of its current activities.”

The Globe & Mail also has good coverage of this decision: Canada’s spy agencies chastised for duping courts.

I can't help but think that though spies are not expected to have scruples and ethics, the Federal Department of Justice lawyers who participated in this likely failed to meet their professional obligations that exist regardless of their political masters and whom they are representing.

The misleading affidavits used at the ex parte hearings to obtain the warrants were prepared by and sworn in front of lawyers who have a free-standing, ethical obligation to never mislead the court. This is noted by Justice Mosley:

[82] The duty of full and frank disclosure in an ex parte proceeding was discussed by the Supreme Court of Canada in Ruby v Canada (Solicitor General) 2002 SCC 75, [2002] 4 S.C.R. 3 at para 27:

In all cases where a party is before the court on an ex parte basis, the party is under a duty of utmost good faith in the representations it makes to the court. The evidence presented must be complete and thorough and no relevant information adverse to the interests of that party may be withheld; Royal Bank, supra, at paragraph 11. Virtually all codes of professional conduct impose such an ethical obligation on lawyers. See for example the Alberta Code of Professional Conduct, c.10, r.8.

[83] The DAGC acknowledges that this duty, also known as the duty of utmost good faith or candour, applies to all of the Service’s ex parte proceedings before the Federal Court: Harkat (Re), 2010 FC 1243 at para 117, rev’d on other grounds 2012 FCA 122, appeal on reserve before the Supreme Court; Charkaoui (Re), 2004 FCA 421 at paras 153, 154; Almrei (Re), 2009 FC 1263, para 498. In making a warrant application pursuant to sections 12 and 21 of the CSIS Act, the Service must present all material facts, favourable or otherwise.

The Court then goes on to note that this misleading conduct was sanctioned by DOJ counsel:

[90] Based on the documentary record before me and Mr. Abbott’s evidence, I am satisfied that a decision was made by CSIS officials in consultation with their legal advisors to strategically omit information in applications for 30-08 warrants about their intention to seek the assistance of the foreign partners. As a result, the Court was led to believe that all of the interception activity would take place in or under the control of Canada.

I find this to be appalling conduct on the part of CSIS, but it is even more egregious that it was in consultation with legal counsel. It brings shame on the profession and also brings the administration of justice into disrepute.

Canadian secret national security court calls on amicus curiae to address vexing issues

Most Canadians are surprised to discover that we have a secret court, just like the US Foreign Intelligence Surveillance Court, that meets in a bunker in Ottawa, issuing secret warrants to do a range of cloak and dagger activities including wiretapping and installing bugs. But we do. (They are judges designated under the Canadian Security Intelligence Service Act by the Chief Justice of the Federal Court of Canada.)

Most Canadians are also surprised to learn that we have the canuck equivalent of the National Security Agency (the CSEC) and our own Canada Patriot Act in the Anti-Terrorism Act.

But one thing that distinguishes Canada from the US in an important way is that designated judges under the CSIS Act have, from time to time, retained "friends of the court" to argue positions in opposition to government requests. It hasn't happened often, but is something that our friends to the south may want to consider as controversy about PRISM and a secret body of evolving caselaw is being established.

Unopposed applications resulting in secret decisions with significant civil rights and constitutional implications easily leads to the presumption that the system is rigged and intelligence agencies get a free ride. While transparency would call for published decisions and open court, independent lawyers arguing the other side is a step in the right direction.

I've managed to find three published decisions from Canada where amici where used, and perhaps there are more that are unpublished.

For example, in Re Canadian Security Intelligence Service Act, 2008 FC 300, an amicus assisted the court in considering whether a jurisdictional issue raised in a warrant application could be heard in public, in open court. (The answer was no, but the decision was published.) In connection with the same matter, in Re Canadian Security Intelligence Service Act, 2008 FC 301, an amicus curiae was appointed to consider whether the court can authorize CSIS to carry out clandestine activities outside of Canada. (The answer was no.)

More recently, in Reference re sections 16 and 21 of the Canadian Security Intelligence Service Act, 2012 FC 1437 (CA), the Court called upon a amicus curiae to help with the question of whether "section 16 of the Canadian Security Intelligence Services Act prohibits the naming of [a Canadian citizen, permanent resident or corporation] in a warrant as [a natural or corporate person] whose communications are proposed to be intercepted, when the warrant is issued in relation to a request for assistance in the collection of information or intelligence from the Minister of National Defence or the Minister of Foreign Affairs relating to the capabilities, intentions or activities of [a foreign state or group of foreign states, corporation or person]." Importantly, the Court agreed with the amicus and denied CSIS the warrant.