They do not wish to explain how that works. But if, during a ransom negotiation, a known Canadian captive (or even a captor) turned up on the lines, CSEC says it would have to take steps to conceal any Canadian identities and conversations from being shared with federal partners – who couldn’t get that material unless they had a warrant.
That is because Canadians’ conversations are legally considered private, and intercepting them without a warrant is generally a Criminal Code offence.
Still, by collecting telecommunications data in bulk, including Canadian data, how is CSEC not guilty of illegal search and seizure?
One of the CSEC directors points out his predecessors spied on Nazi radio frequencies in the 1940s – and that this, too, was metadata.
What he means is that the Canadian agency and its allies have spent fully seven decades looking at how electronic communications move – a skill set first forged when they couldn’t crack codes shielding an adversary’s conversations.
Formed as a Cold War agency, CSEC was left somewhat rudderless after the collapse of the Soviet Union – its $100-million-a-year budget stayed flat through much of the 1990s.
But the Sept. 11, 2001 attacks changed that. Where CSEC had once focused on grabbing Russian radio signals from the Arctic, its surveillance reach grew global in the effort to combat terrorism. Today, it is a complex spying giant that continues to grow even as terrorist threats seem to subside. (Budget forecasts released this week show CSEC will cost taxpayers a whopping $830-million in 2014, thanks in part to a one-time $300-million payment related to the new headquarters.)
Powers have also expanded. Records obtained by The Globe last year show that, since at least 2005, the agency has operated under a “Use of metadata Ministerial Directive” – a form of legal cover that allows it to collect what it can on the understanding that “metadata is information associated with a telecommunication … and not a communication.”
In other words, CSEC can collect metadata in bulk, from citizens and foreigners alike, with a top-level assurance that it is not breaking laws that safeguard private Canadian communications.
Not everyone is comfortable with this. Last fall, the British Columbia Civil Liberties Association sued CSEC. “One of the central issues in the lawsuit will be to find an expectation of privacy in metadata,” said Caily DiPuma, a BCCLA lawyer, in an interview after the sit-down at CSEC.
The agency is facing other legal challenges. In December, outraged Federal Court Justice Richard Mosley ruled the agency had been part of a “deliberate decision” to keep his court “in the dark” about aspects of an intelligence investigation involving two Canadian terrorism suspects who disappeared abroad years ago.
The issue? CSEC had glossed over the fact it shares even its most sensitive intelligence with its partners in the “Five Eyes” – the alliance with U.S., U.K, Australian and New Zealand surveillance agencies.
At the CSEC headquarters, I ask about the judge’s ruling and the civil case. The seven officials seated across from me answer my question with poker faces: They will not discuss these issues; they don’t want to taint their defence.
Accountability models are a safer subject. A CSEC policy director stands up to sketch what looks like a coffee filter, explaining how everything the agency does trickles through laws, ministerial edicts and thick operations manuals – all in order to protect Canadians.
Beyond all that, a watchdog “commissioner” and his staff of 11 scrutinize operations. “We would love it if people were to trust us,” the policy director says.
As difficult a leap as that may be for some, there is reason to believe the Canadian agency does have limits compared to its bigger allies.
In December, a Snowden leak showed that some Five Eyes agencies complained that Canada was being relatively stingy about its metadata collections.
CSEC was said to “minimize” its haul – essentially striking out any information speaking to Canadian identities – before passing it along to allies.
But “re-evaluation of this stance is ongoing,” read the leaked 2008 documents, published by The Guardian.
In the boardroom, the professional spies won’t speak about the leaks. Yes, they took the unprecedented step of inviting a reporter into headquarters to explain their work. But they stated little in concrete terms.
This standoff strikes at the centre of the larger debate, one that is sure to continue as more revelations are made about how spying in the name of advancing Canada’s national interests may interfere with the personal freedoms of Canadian citizens.
Inside CSEC, meanwhile, they keep talking of seeing “shapes,” “patterns,” even “topography,” in data trails.
To the surveillance professionals, metadata are a road map to human behaviour. We on the outside are asked to trust that these federal agents, whose names the country will never know, are out to use it for good.Report Typo/Error