Canada's spy agency wants more power. How would that work?
Catharine Tunney | CBC News | Posted: February 28, 2021 9:00 AM | Last Updated: February 28, 2021
CSIS director took aim at the spy agency’s enabling legislation earlier this month
The agency he runs fell afoul of the Federal Court — and now the country's chief spy is intensifying his campaign for new powers and sounding the alarm about the Canadian Security Intelligence Service's ability to keep tabs on hostile foreign states.
But civil liberties advocates are urging Parliament to be skeptical if it agrees to crack open the legislation that governs CSIS.
In a rare public speech earlier this month, CSIS director David Vigneault took aim at the spy agency's legislation.
"We need to ensure that CSIS authorities continue to evolve so that they are able to address the challenges of the significantly more complex environment around us," he said.
"Our act sets technological limitations on intelligence collection that were not foreseen by the drafters of the legislation in 1984 and unduly limit our investigations in a modern era."
WATCH | CSIS head takes aim at security laws
His speech, delivered virtually to the Centre for International Governance Innovation, said that hostile foreign governments — notably China and Russia — are "aggressively" targeting Canada to obtain political and economic advantages.
Leah West, a former federal lawyer who is now a lecturer on national security issues at Carleton University, said the service has been constrained for years by two words in its enabling law: "within Canada."
CSIS isn't able to collect foreign intelligence in the way the CIA or MI6 does. Section 16 of the CSIS Act allows the service to collect foreign intelligence relating to the capabilities, intentions or activities of any foreign state — as long as the information itself is located within Canada.
"There's a huge gap in Canada's foreign intelligence collection abilities," West said.
"In this day and age, having a good understanding of the intents and abilities and priorities of foreign governments is really important. We are living in a global pandemic. This information is extremely important these days."
The limitations placed on CSIS's sphere of operations by the law make it unclear whether, for example, the intelligence agency could access a target's information if the data in question were sent via an email hosted on a server outside of Canada.
Meanwhile, the Communications Security Establishment — Canada's foreign signals agency — is prohibited from collecting intelligence on people within Canada.
"There's a gap for people in Canada who store their data outside of Canada," said West. "And that's a gap that, if I was a foreign state entity, I'd be looking to take advantage of."
Federal Court has pushed back at CSIS
In recent years, the Federal Court has ruled against CSIS over its approach to foreign intelligence.
Just this month, a judge denied the service's request to collect foreign information, ruling that a proposed technique would stray beyond the spy service's legal mandate.
The court has noted in the past that Parliament imposed the "within Canada" requirement because collecting intelligence in other countries could harm Canada's international relations — an interpretation CSIS rejects.
"The court's interpretation of the 'within Canada' limitation in the context of new technology significantly impacts the ability [of] CSIS to provide advice to the minister of foreign affairs or national defence," CSIS spokesperson John Townsend told CBC News this week.
The government of Canada has filed an appeal of that recent Federal Court decision posing specific questions pertaining to the interpretation of CSIS's authority to collect foreign intelligence.
Stephanie Carvin, a professor of international affairs at Carleton University and a former national security analyst, called Vigneault's speech a plea for attention from Parliament.
"What the director is effectively saying is, 'Look, we've stressed our mandate as far as it goes, but it's no longer adequate to address some of these threats,'" she said.
"I think there's this real misconception that intelligence services want to operate in the dark and in the shadows and things like this, and to a certain extent they do. But they also really like legal certainty."
But lawyer Lex Gill, an affiliate with the Citizen Lab at the Munk School of Global Affairs and Public Policy, said lawmakers should be reluctant to entertain CSIS's requests for greater authority in light of the court's concerns.
"The greater a state actor's ability to infringe [on] our privacy rights and our other constitutional rights, the more robust the mechanisms for prior judicial authorization, oversight and review must be," she wrote in an email to CBC News.
"It's fair to say that intelligence agencies in Canada have had a track record of asking for more of the former without due regard for the latter."
CSIS's request for 'modern tools' questioned
Vigneault also said the act needs to be updated so that the service can "use modern tools and assess data and information" — in part to keep up with the flood of information.
"When the CSIS Act was drafted in 1984, telephone books and alligator clips on phone lines were among the tools used to identify threat actors and collect information. Information was stored in silos," said Townsend.
"The changes contemplated are not about addressing the issue of encryption. Rather, it is about ensuring CSIS analysts have the tools and authorities to help them make sense of exponentially growing data, in strict accordance with Canadians' expectations of privacy."
WATCH | Head of CSIS says he's 'most concerned' by the actions of Russia and China
That worries Brenda McPhail, privacy director at the Canadian Civil Liberties Association.
"To me, that sounds like they're looking to leverage artificial intelligence applications and they want to be able to potentially combine large data sets to train and draw inferences from combining different sets of data," she said.
That kind of data collection and surveillance can be particularly alarming for people of colour, said McPhail.
"It comes from a place of incredible privilege to say, 'I have nothing to hide, so I have nothing to fear.' So a middle aged white woman like me might be able to say that and think she means it," she said. "But a young Black man who's ever been stopped simply for the crime of driving Black would be deeply and intimately aware that it doesn't matter if you're blameless.
"People are unjustly and disproportionately targeted and as people in Canada we should care about that. "
Who gets to hear CSIS's secrets?
CSIS also has signalled it wants Parliament to take another look at the part of the act that says who it can provide classified briefings to.
Section 19 of the act says the agency can advise "the government of Canada".
Townsend said the agency can still give "sanitized threat overviews" and unclassified briefings to external stakeholders, but stressed that threats to Canada's COVID-19 vaccine rollout have shown that private sector firms play a role in national security.
Carvin said that, for years, espionage was focused on governments targeting other governments' secrets and military plans.
"That has changed. We are now looking at governments that are targeting NGOs, activist groups in Canada, for clandestine foreign influence purposes, that they're targeting cities and provinces because they control critical infrastructure in Canada and businesses who have lots of important data that is now strategic," she said.
"The nature of the threat is such that maybe [CSIS] needs to be talking to groups that are being targeted, say by China."
The B.C. Civil Liberties Association has tried to take CSIS to task for sharing information on protesters with the National Energy Board (NEB) and petroleum industry companies — something the advocacy group sees as a violation of section 19 of the CSIS Act.
The spy agency's watchdog dismissed BCCLA's complaint and the association is now taking its case to the Federal Court.
Government 'will always work with security agencies'
Updating the CSIS Act was not mentioned in Prime Minister Justin Trudeau's mandate letter to Public Safety Minister Bill Blair. The minister's spokesperson, Mary-Liz Power, said the government is opening to working with CSIS but wouldn't say if the Liberal government would undertake a review of the law any time soon.
"Canadians expect their government's agencies to keep pace with evolving threats and global trends, and we agree. The National Security framework in Canada is always evolving to meet the moment. It is critical that this work be done in accordance with the rule of law, and never at the expense of Canadians' Charter rights," she said.
"We will always work with security agencies and expert partners across government to ensure our agencies have the tools they need to keep us all safe."
The Liberal government overhauled parts of the national security law in 2019, including the rules governing CSIS's use of data sets.
NDP public safety critic Jack Harris said any discussion of changing the law would have to proceed with caution.
"Any request for new powers would need to be clearly substantiated and considered along with assurances that any such powers would be used appropriately," he said in a media statement.
"In light of CSIS's history and judicial comments on their relationship with the court, we need to be vigilant."
McPhail said she wants to see nuanced conversations about CSIS's powers take place both in Parliament and in public — but the agency needs to be more open about what it wants.
WATCH | Head of CSIS on foreign states threatening national security
"If there are specific authorities that are needed in order to create specific tools that will have genuine benefit to national security, then we need more than a vague, 'We need more modern authorities,'" she said.
"We need a statement that says, 'We want to use artificial intelligence applications for the following purposes.' Not operational details, just [a] broad policy level statement.
"There's everything to be gained and nothing to be lost from an open public conversation ..."
Carvin said studying and opening the legislation would allow politicians and the public to engage with difficult questions about privacy, national security and foreign intelligence.
"In the pandemic, intelligence has become extremely important on so many levels," she said. "So I think there is the potential for Parliament to actually do something."