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Op-Ed: The circular, peculiar state of CSEC oversight Special

By George Arthur     May 12, 2014 in Politics
Communications Security Establishment Canada (CSEC) is insulated from meaningful oversight. This article explains how the agency avoids scrutiny, and what you can do to encourage change.
On May 2nd, 2014 Toronto’s Munk Debate series hosted a session on state surveillance which questioned the legitimacy of mass surveillance operations conducted by Five Eyes agencies like Communications Security Establishment Canada (CSEC) and the National Security Administration (NSA).
After an interesting debate between Michael Hayden and Alan Dershowitz, representatives for the pro-surveillance team, and Glenn Greenwald and Alexis Ohanian for the con, the latter duo was declared victorious via audience vote (thanks in large to a stellar performance by Greenwald), which is not a huge surprise given that what Greenwald was saying was well argued and thought-out, whereas the efforts of the pro team were, well, neither of those things (you can watch for yourself).
In a live conversation following the debate, hosted by Citizen Lab’s Ron Diebert and featuring reporter and author Joseph Menn and Ontario Privacy Commissioner Ann Cavoukian, attention briefly shifted to CSEC. During the exchange, Cavoukian touched on the fact that Canadian oversight of CSEC operations is shoddy at best.
“I hate to have to admit this,” Cavoukian said, “but I think that we do a far worse job in Canada than the United States.”
Her position isn’t without supporters.
National Defence Critic Jack Harris has a private members motion seeking greater oversight of CSEC, and Senator Colin Kenny has written of current oversight systems: “If Canadian security agencies break Canadian laws, there’s a good chance that nobody will be the wiser for a long time to come.”
To date, no one has been the wiser should there be anything illegal happening at CSEC.
In fact, in the 16-year history of the review body that monitors CSEC operations, the Office of the CSE Commissioner, there has never been a charge of wrongdoing levied against the agency. Sure, the odd concern has been noted, but formally speaking, CSEC has always been found to act in a way that is legally compliant.
Of course, as Ontario Privacy Commissioner Cavoukian notes, this is due at least in part to the incredibly peculiar reporting system that governs the CSE Commissioners Office, “[the commissioner] reports to the Minister of National Defence (…) [but] the Minister of National Defence runs CSEC — look at how circular it is. There’s no independence whatsoever.”
More than just an issue of independence, there are other noteworthy concerns.
For example, another reason that the CSE Commission has never found CSEC to act illegally likely has to do with Ministerial Authorizations (MAs) — the highly secretive, rarely discussed, and never seen decrees that permit CSEC and the Minister of National Defence to operate without court warrants, close care for the law, or fear of legal repercussion.
Introduced in the Anti-Terrorism Act that followed 9/11, MAs are issued at the sole discretion of the Minister of National Defence, and are described in full via sections 273.65 through 273.7 of the National Defence Act (NDA). They allow the Minster of National Defence to issue written directions or commands to CSEC, and the only bodies that review MAs before they are initiated are the Minister of National Defence, CSEC, and “an embedded legal team from the Department of Justice.”
I think now is a good time to point out that Rob Nicholson currently serves as the Minister of National Defence, a job he took over from Peter MacKay in July of 2013. Previously, Nicholson had held the post of Minister of Justice and Attorney General, a position he held from January 2007 until taking his new assignment. To replace Nicholson as Minister of Justice and Attorney General, Prime Minister Stephen Harper appointed Peter MacKay. In essence then, Nicholson replaced MacKay and MacKay replaced Nicholson.
And so, when Nicholson issues an MA, he most likely talks to MacKay. Just a few months ago it was MacKay who consulted Nicholson. It’s curious and, as Cavoukian noted with regard to oversight, circular. What’s more, the oversight committee mentioned earlier — the Office of the CSE Commissioner — is only ever allowed to review MAs ex post, which is Latin for “after the fact.”
More alarmingly, section 273.67 of the NDA reads as follows: “Notwithstanding any other law, every person or class of persons that is authorized to give effect to an authorization under section 273.65 or any person who assists such a person is justified in taking any reasonable action necessary to give effect to the authorization.” Section 273.69 then gets über-specific: “Part VI of the Criminal Code does not apply in relation to an interception of a communication under the authority of an authorization issued under this Part or in relation to a communication so intercepted.”
So then, in review, not only is CSEC allowed to do anything in the name of "giving effect" to a Ministerial Authorization without fear of legal repercussion, they specifically can ignore Part VI of the Criminal Code… In case you aren’t aware, Part VI of the Criminal Code of Canada deals, at length, with privacy protection.
To this point, Cavoukian notes that when faced with questions about the potential for privacy breaches that would typically be considered illegal, the head of CSEC, John Forster, has essentially always deferred to the point upon which General Michael Hayden — former director of the NSA and CIA — ended the Munk Debate with, which was (and I quote), “trust me”.
Returning to the Ontario Privacy Commissioner, Cavoukian said in the post-debate conversation, “the head of the CSEC went on TV about a month ago and said virtually nothing, he said don’t worry, it’s basically a trust us model.” Understandably, she sees this as a problem.
The sentiment is shared by Jack Harris, who I caught up with following the April 3rd House of Commons Standing Committee meeting on National Defence, a meeting where both Rob Nicholson and John Forster were available for questioning. Asked whether he found the answers provided by Nicholson and Forster about CSEC activities to be sufficient, Harris was clearly left wanting. Wrote Harris, “The adequacy of the law is itself in question – what happened (April 3rd) certainly couldn’t pass for parliamentary oversight. MP’s can’t get straight answers on straightforward questions.”
Harris continued, “The missing links here are better, stronger, clearer legislation and a robust system of Parliamentary oversight. There has to be an institutionalized framework that allows the public, through their Members of Parliament, to provide oversight for such a powerful instrument of the state (with regard to) intrusion into our lives and privacy.”
He's right. But if oversight of CSEC going to improve, don’t expect landmark innovations in systems of investigation to come from the toothless office in charge of monitoring CSEC, as on top of having a faulty mandate, the Office of the CSE Commissioner is also penny-strapped.
In 2012-13 the Office of the CSE Commissioner operated with a budget of $2,285,719 which supported eleven staff members, while the organization they are tasked with monitoring (CSEC) enjoyed a budget of $414,494,557 and employed just over 2000 individuals.
Although estimates are unofficial, the budget for the CSE Commissioner has shrunk slightly for 2013-14, now reduced to $2,112,886 to cover the expenses of a steady-held eleven employees, while CSEC’s budget jumped to $422,207,847 and employs 2171 agents (as of publication). Forecasting for 2014-15, the Office of the CSE Commissioner is expected to lose more funding – shrinking to a budget of $2,024,288 — while the anticipated budget for CSEC in 2014-15 is currently resting at $829,131,918 (that’s not a typo, but it is the result of a one-time increase to help pay for CSEC's new headquarters which is currently estimated to cost over $1 billion).
The Office of the CSE Commissioner is not the only public oversight committee that has seen their teeth dulled in recent years. After entirely eliminating the role of the CSIS Inspector General last year, Prime Minister Stephen Harper took a red pen to the budget of the Auditor General, the Security Intelligence Review Committee (SIRC), and the Privacy Commissioner. Facing slashed budgets in upcoming years, all three groups will be asked to investigate more than ever with fewer resources than ever.
Commenting on the fact that review agencies in Canada are receiving less funding, and that (as mentioned earlier) reviews of CSEC activities are conducted ex post, Independent Senator Colin Kenny wrote, “Canadians need more than review of past events; they need oversight of what is happening in real time.”
Kenny continued, “The United States has a multitude of security agencies, and they occasionally get out of line, as one might expect. But at least the Americans put their politicians in charge of oversight of these agencies through both House and Senate select committees on intelligence. If American security agencies break American laws, Congress can squeeze their budgets, which is akin to institutional waterboarding.”
While there are questions regarding the effectiveness of US oversight committees, there is no questioning that the US system does provide greater access to real-time information than what exists in Canada.
To return to Cavoukian, the Ontario Privacy Commissioner noted that, as is, Parliament is left in the dark as to CSEC activities, and are reliant on the question periods that Harris has found so under-whelming. “Parliament doesn’t have access to any information. No one is getting any information on [CSEC] and so in terms of transparency we have far less than the United States, I think we should be ashamed of that.”
William Galbraith is the executive director of the Office of the CSE Commissioner, and in a speech given to the Security and Privacy Conference in Victoria, B.C. in early February he said that misgivings with CSEC or the CSE Commissioner shouldn’t be directed at the agency or the oversight committee, but at Parliament, as they are the ones who ratified the laws that have granted the Minister of National Defence and CSEC such sweeping powers: “If there are concerns about what the law permits, or what the government directs, those are questions to be directed at the political level and for Parliament to consider.”
As frustrating as it is to hear the mouthpiece for the CSE Commissioner’s Office say the office can’t really do anything other than continually find CSEC to be in compliance with the law, he’s also right. So instead of vilifying CSEC, Forster, Nicholson, or the CSE Commissioner (easy as it would be, and as lame as what I’m about to write sounds), get in touch with your MP and demand change, demand that they support Jack Harris’ private members motion for greater oversight of CSEC, demand that Ministerial Authorizations be reconsidered, and support efforts to increase CSEC’s accountability.
You can also voice your concerns by supporting efforts that are already underway to hold CSEC accountable for its actions.
For example, on April 1st, 2014 the British Columbia Civil Liberties Association (BCCLA) filed a federal class action lawsuit against CSEC which aims to represent “all people who have used a wireless device — laptops, cellphones, smartphones, tablets and similar devices — in Canada since 2001.”
The lawsuit, which was brought forth by BCCLA President and Vancouver based lawyer Lindsay Lyster, argues that “two aspects of CSEC’s operations violate Charter protections against unreasonable search and seizure and infringe free expression rights: the interception of private communications of Canadians and the sweeping collection of metadata information produced by Canadians”, and is a companion case to the claim filed by the BCCLA in the B.C. Supreme Court in the fall of 2013.
Another option is to try and encourage the Office of the CSE Commissioner to engage the Federal Court.
Writing on his absorbing and highly underrated blog, Vice Dean & Associate Professor in the Faculty of Law with the University of Ottawa Craig Forcese commented on the challenge that is monitoring CSEC and opined that involving the Federal Court may be a good idea. Although he was writing in regards to the CSEC Wi-Fi scandal, his observations are insightful:
“I am left to wonder why review bodies such as the Commissioner don’t use their ability to refer legal questions to the Federal Court for resolution, when confronted with a battle of legal memos. (…) We would have many minds considering important questions of national security and rights. That would be an enormous improvement over the government’s present, uninterrupted monopoly over the construal of CSEC's surveillance rules.”
Between motions to provide the House of Commons with more power to investigate CSEC, ideas to increase the abilities and funding of the CSE Commissioners Office, lawsuits to sue the pants off of CSEC, or requests to refer legal questions to the Federal Court, one thing is for sure – there are a lot of options out there to improve regulation of one of Canada’s most powerful law enforcement agencies.
Another thing that is for sure, as evidenced by the exit polls from the Munk Debate, is that Canadians question the efficacy of state surveillance. Given that CSEC — like any other federal agency – is meant to represent the public, it only makes sense that oversight measures to ensure they are in fact representing the public's interest be in place. However, the convoluted, insular and circular oversight systems we currently have do not allow for meaningful investigations into CSEC's activities, and instead protect the agency from constructive criticism.
Considering the growing power of CSEC, and that both our privacy and our right to be free from unreasonable search and seizure are on the line, it's a cause worth getting involved in.
This opinion article was written by an independent writer. The opinions and views expressed herein are those of the author and are not necessarily intended to reflect those of
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