Spy agency’s watchdog wants more info on wiretaps
Wednesday, June 13, 2007
OTTAWA -- Canada's ultra-secret electronic spy agency is not providing sufficient information when it seeks government approval to eavesdrop on private telephone calls, says the agency's watchdog.
Without those fuller details, it is difficult to determine whether the Communications Security Establishment (CSE) is acting lawfully when it intercepts such conversations, retired Supreme Court of Canada justice Charles Gonthier says in his first annual report as the CSE's oversight commissioner.
"The legislation lacks clarity and it ought to be amended," he says in the report.
His concern echoes those in two recent parliamentary committee reports and of two former CSE commissioners, including his predecessor, Antonio Lamer, retired chief justice of the Supreme Court.
At issue is an important but often overlooked provision of the 2001 Anti-terrorism Act. It gave the CSE, the civilian cryptologic arm of the Defence department, new authority under the National Defence Act to monitor telephone calls between Canadians and foreigners for intelligence-gathering purposes.
The CSE has similar intercept power for the protection of government computer systems and networks. Its broader operations include intercepting, decoding, translating and analysing phone calls, e-mails and other electronic communications of Canada's international adversaries.
Before 9/11, if a known or suspected terrorist operating abroad contacted someone in Canada, even if the person in Canada was a foreign operative of al-QaIda, the Criminal Code prevented the CSE from listening to that, or any other domestic telephone call.
Now, provided the target for the collection is a foreign entity outside of Canada and at least one end of the call is outside of Canada, it can eavesdrop on the conversations in the hope of picking up discussions about terrorist recruitment, training, targeting, fundraising and other valuable pieces of intelligence.
But before any such monitoring, the CSE needs ministerial approval, typically from the defence minister.
The National Defence Act, as amended by the anti-terror legislation, allows the minister to grant approval for the sole purpose of obtaining foreign intelligence if, and only if: the interception will be directed at foreign entities located outside Canada; the information could not reasonably be obtained by other means; the expected foreign intelligence value of the information justifies it; and satisfactory measures are in place to protect the privacy of Canadians and to ensure private communications will only be used or retained if they are essential to international affairs, defence or national security.
But Gonthier says the legal interpretation provided by the Department of Justice in advising the CSE on ministerial authorizations, "is not supported by a simple reading," of the new law.
"When I am asked to consider whether an activity is lawful, I must first determine what the law states in respect of that activity. The relevant act is the yardstick by which the lawfulness of the activity is measured.
"The difficulty arises, in instances such as this, when there is a fundamental difference of opinion about what the act states. I hope the government will make the required amendments at the earliest opportunity."
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