Counterterrorism agencies have spent years hoping to run wiretaps against Canadian suspects who live abroad. Yet a lingering loophole means the spies continue to go "blind and deaf" whenever Canadian targets board outbound planes, a former spymaster says.
"Technically we can do it, but legally we can't," said Jack Hooper, a former deputy director for the Canadian Security Intelligence Service.
In an interview, Mr. Hooper argued that the country's spying laws are legacies of an analog age, hampering investigations in an era of mobile phones, the Internet, cheap jet travel and so-called "homegrown" terrorist threats.
"God forbid. If something really bad happens, the question will be asked: 'What were you doing with this guy when he was in Country X?' " he said. "And we'll say 'Well we could have covered him, but we were proscribed by law.' "
Mr. Hooper, who retired from CSIS last year, said that a host of agencies know about the problem - "It's a huge hole and I think it's a broad concern of government" - but solving it remains a real conundrum.
Security services had hoped they could change practices without waiting for Parliament to change the law. As The Globe and Mail reported Saturday, the Federal Court has rejected a CSIS warrant application that sought overseas intercepts against nine Canadian suspects and one foreigner.
Mr. Justice Edmond Blanchard ruled that the anonymous targets were threatening enough to be bugged within Canada, but found his court had no jurisdiction to endorse overseas wiretaps against Canadian citizens or residents. That effectively means bugging stops at the border.
News of this case has stunned Canadian national security experts, even though the weakness of the law has been quietly acknowledged for years.
After the terror attacks of Sept. 11, 2001, officials took stock of the gaps that existed in counterterrorism laws. CSIS secretly submitted its first application for foreign warrants in 2005, according to the recent Federal Court ruling, but the bid was withdrawn for undisclosed reasons.
Last year, CSIS renewed its case (again secretly) in the bid to monitor the 10 suspects. "The rationale with going forward with the application to the Federal Court was to fill that gap," Mr. Hooper said.
There is no question that Canada has the capability to listen in on foreign conversations - in fact, its capacity to do so has greatly expanded in recent years.
The country's secretive signals-intelligence agency, distinct from CSIS, has almost doubled its staff in recent years and has been vastly expanding its office properties, according to recent academic papers by professors Martin Rudner and Kent Roach.
While the Communications Security Establishment appears to be doing a lot more eavesdropping, it remains explicitly banned from spying on any Canadians. So while the CSE routinely aims its ears outward to hear what foreigners have to say, it effectively blocks its ears whenever a Canadian enters a conversation.
The CSE can lend high-tech help to domestic agencies by sorting through domestic intercepts, providing they were obtained legally. Through these provisions, the CSIS overseas warrant application was an attempt to further marry the sister agencies' capabilities.
"In respect to whether the CSE can assist in the execution of the warrant, while I find the arguments by [CSIS] to be persuasive ... it is not necessary to decide the issue at this time," Judge Blanchard wrote in his ruling.
CSIS says it is dropping the initiative to have the Federal Court sign off on foreign warrants. (A spokeswoman has pointed out warrant decisions cannot be appealed.) But to Mr. Hooper, the ex-CSIS deputy director, there are issues beyond jurisdiction.
The CSIS Act hasn't been changed since it was first passed in 1984. "All of our legal architecture is founded on the notion that telecommunications intercepts involved putting bugs in walls or hooking interception devices to pairs of copper wires," he said.
Today even talk of "wiretapping" is losing currency in a digital age where data travels randomly through a host of jurisdictions. "You intercept communications now by sucking microwaves out of the ether."