Security watchdog says agency may be spying on Canadians

Critics are urging the Harper government to lift the veil that shrouds Canada's electronic eavesdropping agency in the wake of an overseer's report that suggests ordinary Canadians may have been illegally spied on.

In his final report to Parliament before he leaves his post, commissioner Robert Decary says some of the spying activities at Communications Security Establishment Canada may have affected Canadians in the last year.

However, thanks to poor record-keeping, Decary — a retired judge who has been the agency's independent watchdog since 2010 — said he can't be sure.

"A number of CSEC records relating to these activities were unclear or incomplete," said the report, tabled Wednesday.

"After in-depth and lengthy review, I was unable to reach a definitive conclusion about compliance or non-compliance with the law."

CSEC says, however, that it did not break the rules.

"The commissioner's statement about a lack of records is a reference to a single review of a small number of records gathered in the early 2000s, in relation to activities directed at a remote foreign location," the agency said in an emailed response.

"This conclusion does not indicate that CSEC has acted unlawfully. It indicates that certain material upon which the commissioner would have relied for his assessment was incomplete or not available for a number of reasons."

The report comes amid startling revelations about the interception of Internet communications from Americans and British citizens by their respective governments.

'Accounting errors' shouldn't raise alarm: analyst

But at least one analyst likens Decary's findings to "accounting errors" amid massive amounts of electronic data.

Canadians need not be alarmed by the report's findings, said Ray Boisvert, until last year a deputy director with the Canadian Security Intelligence Service.

Inadvertently tracking a few innocent Canadians is inevitable, considering the piles of information being sifted through government computers, said Boisvert, who spent 30 years with CSIS and the RCMP.

"Given the massive volume of millions and billions of pieces of data tracked, those are kind of like accounting errors," Boisvert told The Canadian Press.

'I started my mandate with the expectation that the legislative amendments to the National Defence Act proposed by my predecessors would soon be introduced in Parliament, but this has yet to happen' —CSE Commissioner Robert Decary

"Is there a grand conspiracy to dupe Canadians or to pry (into their personal lives)? No, absolutely not."

The report nonetheless contradicts statements made in June by Peter MacKay, the defence minister at the time, who denied the government was spying on Canadians, NDP defence critic Jack Harris said Thursday.

Any illegal snooping on Canadian citizens "has to stop," Harris said.

"Minister of National Defence Rob Nicholson needs to release all information related to this spying immediately," he added, noting that the resumption of Parliament is being put off until at least October.

"The Harper government can't continue its practice of hiding, prorogation or not."

Julie Di Mambro, a spokeswoman for Nicholson, said the government takes the privacy of its citizens seriously, and that targeting of Canadians by the spy agency is not tolerated.

"The privacy of Canadians is of utmost importance," Di Mambro said in an email. "CSEC is prohibited by law from directing its activities at Canadians anywhere in the world or at any person in Canada."

The end game for any spy agency is to prevent attacks, such as the Boston Marathon bombing in the United States, Boisvert said. As such, striking a balance between protecting people and their privacy can be tricky.

"That's what we're all really talking about here, is catching bad guys — or hopefully trying to thwart the plans of threat actors."

Court reins in U.S. agency

South of the border, the Obama administration has been embroiled in a controversy over the collection of thousands of Internet communications by Americans, under the guise of fighting terrorists.

On Wednesday, documents were released by U.S. intelligence officials after a court ordered the National Security Agency to stop the practice of gathering information from Americans who have no connection to terrorism.

The Obama administration acknowledges it intercepted, collected and stored email and other Internet traffic, but has maintained it was an unintended consequence of gathering information connected to terror suspects.

The release of NSA documents is part of the administration's response to the leaks by analyst-turned-fugitive Edward Snowden, who revealed that the NSA's spying programs went further and gathered millions more communications than allowed under law.

CSEC is indeed forbidden from intentionally collecting or analyzing information from Canadian citizens, whether they are in Canada or abroad.

However, the National Defence Act allows the defence minister to give CSEC written ministerial authorization to unintentionally intercept private communications while collecting foreign-signals intelligence.

In the U.S., a newly released ruling by District Court Judge James D. Bates points to government submissions that he said made clear that the NSA had been gathering Internet data on American citizens years before it was authorized to do so by the Patriot Act in 2008.

Watchdog critical of reform delays

Decary, who is stepping down from the commissioner's post for personal reasons, has agreed to stay on for another three months until a successor can be appointed.

But on his way out the door, the commissioner is critical of the Harper government, accusing it of taking too long to make changes to anti-terrorism provisions of the National Defence Act.

The Anti-terrorism Act was adopted following the 9-11 terrorist attacks in the United States, which created the commissioner's position and gave CSEC its legislated mandate.

Numerous CSEC watchdogs have repeatedly called for clarification of the agency's authority, but no changes have been forthcoming, said Decary.

"I started my mandate with the expectation that the legislative amendments to the National Defence Act proposed by my predecessors would soon be introduced in Parliament, but this has yet to happen," he wrote in his report.

"I am deeply disappointed at the lack of action by the government, which is no longer in a minority situation, to address the ambiguities identified by my predecessors and myself."