Lux Ex Umbra: I spy with my five little eyes...

Back in 2009, Justice Richard Mosley issued a warrant authorizing CSIS, assisted by CSEC, to monitor from "within Canada" the communications of two Canadians travelling abroad. (The publicly released, redacted version of the decision can be read here.) A number of similar warrants have since been issued in other cases.

At the time, I commented that probably the most important way in which CSEC could assist CSIS in this regard was to "task the collection resources of its UKUSA allies to conduct intercepts of Canadian targets."

Last month, the Security Intelligence Review Committee (CSIS's watchdog committee) confirmed that this kind of assistance does indeed draw on the resources of CSEC's allies:

In order to maximize collection under the new warrant power, CSIS, in almost every case, leverages the assets of the Five Eyes community (Canada, plus the United States, the United Kingdom, Australia and New Zealand).

It appears, however, that Justice Mosley wasn't told that.

In August, the Annual Report of the CSE Commissioner addressed the Mosley decision, recommending that

1. CSEC discuss with CSIS the expansion of an existing practice to protect privacy to other circumstances; and
2. CSEC advise CSIS to provide the Federal Court with certain additional evidence about the nature and extent of the assistance CSEC may provide to CSIS.

The recommendations were written in the deliberately obscure language preferred by CSE Commissioners, and they were completely overshadowed by the news that the Commissioner could not rule out that one of CSEC's past programs had involved spying on Canadians. (See comments here.)

But Justice Mosley noticed them, and he summoned CSIS and CSEC to tell him the additional evidence that the Commissioner thought the Federal Court should be told.

So now he knows, and it sounds like he is not a happy Justice.

On November 22nd he issued a classified document called Further Reasons for Order elaborating on that original decision, and today he issued a public statement explaining what's going on:

In the classified Further Reasons for Order, Justice Mosley has found that CSIS breached its duty of candour to the Court by not disclosing information that was relevant to the exercise of jurisdiction by the Court and to the determination by the Court that the criteria of investigative necessity and the impracticality of other procedures set out in subsection 21 (2) of the CSIS Act had been satisfied. Justice Mosley has found that such information must be disclosed to the Court on any subsequent application for similar warrants.

In conducting its review of Commissioner Décary’s recommendations, the Court has determined that the execution of the type of warrants at issue in Canada has been accompanied by requests made by CSEC, on behalf of CSIS, to foreign agencies (members of the “Five Eyes” alliance), for the interception of the telecommunications of Canadian persons abroad.

The Court expresses its views about this practice in its classified Further Reasons for Order. However, it is concerned that statements in the public record, notably in the 2012-2013 Annual Report of the Security Intelligence Review Committee (SIRC) recently tabled in Parliament, may result in a false impression about the nature and scope of such warrants. The SIRC Report discusses the Committee’s “first examination of a new warrant power under Section 21 of the CSIS Act which was initially authorized by the Federal Court in 2009”. The report further states: “In order to maximize collection under the new warrant power, CSIS, in almost every case, leverages the assets of the Five Eyes community...”

This practice is addressed in the Court’s classified Further Reasons for Order. However, in light of these public statements, the Court considers it necessary to state that the use of “the assets of the Five Eyes community” is not authorized under any warrant issued to CSIS pursuant to the CSIS Act. The question of whether CSIS may, with the assistance of CSEC, engage the surveillance capabilities of foreign agencies was not raised in the application that resulted in the issuance of the first such warrant or in any subsequent warrants of this type.