A court is probably not the ideal forum in which to try to clarify the purposes and activities of an intelligence agency. But the Communications Security Establishment Canada is so murky and perplexing that a constitutional challenge by the British Columbia Civil Liberties Association is a welcome opportunity.
The BCCLA is suing for a declaration that CSEC is unjustifiably infringing the Charter of Rights and Freedoms. If the association were to win on every issue, CSEC would probably have to close down. That extreme result may not be desirable, but closer oversight of the agency is. The lawsuit may help articulate what the agency is, what it should be – and what it shouldn’t be doing.
The sections of the National Defence Act that govern CSEC are badly drafted. The definition of “foreign intelligence” is too broad, and doesn’t limit the agency’s scope to actual or potential threats to Canada. That may go some distance to explaining the puzzling surveillance of the Brazilian Ministry of Mines and Energy.
CSEC is also not supposed to engage in surveillance of Canadians except when it gets a special authorization to do so. Is that how it works in practice? The Edward Snowden revelations suggest widespread abuse of the spirit of the law by U.S. intelligence agencies. What’s the story here? Who is overseeing the governments gatherers of secrets, and who is protecting us from them?
The United States has a special court, not open to the public, the Foreign Intelligence Surveillance Court, to consider applications for surveillance warrants. A similar court, so long as it acted more like a watchdog and less like a rubber stamp, could be an option for Canada.
This lawsuit could end up prying open a few of the mysteries of CSEC, and putting firmer limits on its ability to infringe your privacy.