Oversight of national security in Canada still needs a lot of work, new reports show
Use of Stingrays, collection of metadata by CSIS are issues that haven't been resolved, says Steven Zhou
Recent reports of the Canadian Security and Intelligence Service using IMSI catchers, or Stingrays — which mimic cellphone towers to intercept signals — without obtaining warrants are yet another sign that Canadian intelligence agencies often pursue their ends without regard for the law.
Given the use of Stingrays, along with CSIS's recently exposed (and illegal) practice of retaining large amounts of Canadian metadata, it should be clear that Canada's capacity for holding our intelligence agencies accountable should be increased.
And two recent reports show that there's still a lot of work to be done on oversight of national security in Canada.
- Spies' use of cellphone surveillance technology suspended in January, pending review
- Someone is spying on cellphones in the nation's capital
- Federal security officials approved Winnipeg police efforts to purchase spying devices
That's the overall spirit of the two reports that came out earlier this month, which sketch out a broad framework for how such a reformist vision should unfold at the hands of lawmakers.
One report is much more technical. It came from an assessment by the Commons Standing Committee on Access to Information, Privacy and Ethics of the Security of Canada Information Sharing Act, which is contained in the controversial Bill C-51, also known as the Anti-terrorism Act.
The other is much broader in its scope and recommendations, and is the product of cross-country hearings on Canadian national security conducted last year by the Commons Standing Committee on Public Safety and National Security.
While both reports reinforce, in spirit and content, that Canadian national security oversight needs to be bolstered, they don't really get at the details of how to do so on a practical level.
This is especially true of the report from SECU, the public safety and national security committee, given its broad range.
Report short on specifics
That report issued a long list of recommendations, which included a call for repeal of a provision that allows CSIS to violate constitutional rights in the name of disrupting threats.
The committee also recommended requiring a judge's approval for any CSIS disruption operations that break Canadian law.
Providing specific means for how to implement its many recommendations may very well have been beyond the report's scope.
But the public safety committee's assessment doesn't really get at the core specifics of how Canadian national security can actually move forward in a way that consistently holds to account bodies like the Canadian intelligence service, CSIS, and the Communications Security Establishment, which is responsible for protecting Canadian government electronic information and communication networks.
For instance, the SECU report recommends eliminating the "statutory language" in Bill C-51 that allows CSIS to breach Charter rights when carrying out "threat reduction" activities.
The spirit of this recommendation is, of course, much welcomed but what exactly will CSIS's expanded mandate regarding threat reduction look like in real and practical terms? This question begs for lawmakers or bureaucrats to actually come up with a list of things that CSIS can or cannot do.
Fred Ernst of the National Security Oversight Institute notes that the infamous Maher Arar case is just one glaring example of "disruption gone wrong" as carried out by Canada's security apparatus.
Yet the public safety committee's hearings last year didn't include any witnesses like Arar, who could actually have sketched out the details of what certain aspects of counter-terrorist disruption look like. Without such testimony, the detailed ins-and-outs of "disruption" remain rather secret.
Furthermore, as Public Safety Minister Ralph Goodale and other officials and experts have long noted, there's both a theoretical and operational difference between "disruption" and "prevention."
That the public safety committee report doesn't really go into this level of detail in terms of how the committee intends to deal with extremist radicalization calls into question how much it actually understands the available research around the issue. This is key in terms of producing a fair and robust counter-radicalization scheme.
Metadata collection an unresolved problem
The report also has surprisingly little to say about issues related to "lawful access" and the Communications Security Establishment's continuous collection of information — primarily metadata — that enjoys constitutional protections.
The report does recommend that the CSE acquire appropriate warrants when sharing its collected information with other agencies, but doesn't actually address core issues like CSE metadata collection.
This aspect of national security surveillance is the basis of the B.C. Civil Liberties Association's 2013 lawsuit against the Canadian government, which called upon officials in government "to state clearly who they are watching, what is being collected and how they are handing Canadians' private communications and information."
- Is Canada's spy agency eavesdropping on the private communications of Canadians?
- Canadian spy agency sued for allegedly violating charter
This is a huge problem that hasn't really been resolved and any structural reform of Canadian national security should address this issue as a centrepiece.
These are just a couple of subject areas where the report, though quick to provide a broad vision of how things should change, really doesn't get into the nitty-gritty of detailed proposals that are aimed to hold Canada's security apparatus accountable in the most robust way.
The weakness of Canadian national security oversight has long existed in tandem with a security apparatus that has shown that the rule of law is secondary.- Steven Zhou
And as national security expert and University of Ottawa professor Craig Forcese notes, national security is more than just terrorism and counter-terrorism. The scope of the subject also includes "espionage, insider-threats, influence activities, cyber-security, etc.," which the public safety committee report didn't really touch on.
Whether the lengthy list of recommendations will actually carry over into the realm of practical action is, one would suspect, something that relies in large part on outside pressure from civil society.
The weakness of Canadian national security oversight has long existed in tandem with a security apparatus that has shown on more than a few occasions that the rule of law is secondary when it comes to their actions.
This deadlock needs to be broken if Canada's post-9/11 political culture is to regain the trust of its citizenry.