ANNEX 15: THE LAW OF THE FIVE EYES
53.
In conducting its mandate (a) and (b) functions, CSE may not direct its activities at
Canadians or any person in Canada and their activities are subject to measures to
protect the privacy of Canadians in the use and retention of intercepted material. When
CSE performs its mandate (c) function providing assistance to federal law enforcement
and security services, it is sheltered by those bodies’ lawful authority (e.g., a Part VI
authorization or CSIS Act warrant).
54.
When CSE collects foreign intelligence, this is generally an internal decision with no
legislated oversight requirements. However, in the course of collecting foreign
intelligence through signals intelligence operations, CSE may sweep up incidental
“private communications” – that is communications involving Canadians or persons in
Canada. To prevent this from being a violation of the Criminal Code’s Part VI
prohibition on unlawful intercepts, the NDA 1985 puts in place a special authorization
regime, involving the Minister of National Defence. Unlike CSIS, CSE may be
authorised by the Minister to obtain foreign intelligence that may involve private
communications without reference to the courts. The Minister must be satisfied that
the interception will be directed at foreign entities outside Canada, the information could
not be obtained by other means, the value of the material justifies the interception and
that satisfactory measures are in place to protect the privacy of Canadians and to
ensure that the material will only be used or retained if they are essential to international
affairs, defence or security. These broad powers stand in some contrast to the focused
and specific warrantry process for CSIS.
55.
While CSE has historically adopted the position that a ministerial authorisation was not
required before it obtained access to metadata, following Telus and Spencer, and the
changes introduced by PCFOC 2014, that position is no longer arguable.
56.
NDA 1985 requires the appointment of a supernumerary (retired) judge as a
Commissioner of CSE to review its activities and investigate any complaints (section
273.63). The current Commissioner is supported by 11 staff members. His operation
costs a little under $2 million Canadian dollars per year.64 Among other things, the
Commissioner reviews any new ministerial authorisations relating to private
communication on a provisional basis and then addresses them in more detail in his
annual review. His staff are also given access to the data analysis engineers within
CSE and may confirm the processes and uses that it is subjected to.
57.
The Commissioner’s reports have been an important source of information concerning
what mechanisms are employed by CSE and also how it interprets its obligations. In
particular, the 2012 Commissioner’s report disclosed CSE’s policy concerning the
private communications of Canadian citizens that are the ‘bycatch’ of a foreign
intelligence collection:
(a)
64
They must be destroyed, save where the material is foreign intelligence or
material essential to protect the lives or safety of individuals of any nationality,
or where it contains information on serious criminal activity relating to the
http://www.ocsec-bccst.gc.ca/ann-rpt/2013-2014/ann-rpt_e.pdf p. 13.
359