Canada’s spy agency needs an arrest warrant if it uses classified technology that could help it “obtain information about a person’s private activities and personal choices” as part of their foreign intelligence-gathering mandate.
Details of what exactly this technology is and how it is used have been revised in the June 2020 court ruling published online today.
The results of the federal court simply state that they are technologies that allow the Canadian Security Intelligence Service (CSIS) to collect certain information from mobile devices.
The ruling arose out of a 2017 motion for arrest warrants to be issued to gather foreign information about an undisclosed company.
“It then grew and became a means of addressing a number of issues,” wrote Judge James O’Reilly in his ruling, which obscured entire paragraphs.
One of the questions he investigated was whether this top-secret cellphone technology required an arrest warrant.
CSIS argued that some of the most valuable information it receives in support of its intelligence mandate often comes from intercepted communications from “foreign persons affiliated with foreign states, groups of foreign states, or foreign corporations”.
“In order to obtain an arrest warrant to conduct these wiretapping operations, the service must provide reasonable grounds to believe that one or more foreigners are sending or receiving communications about a particular person [redacted] Equipment owned or leased from them, “the court document said.
CSIS also argued that the surveys conducted with this technology, while search queries, are “minimally intrusive”.
CSIS would be able to “draw conclusions,” says Justice
O’Reilly ruled, however, that CSIS interception of this type of data is “more than minimally intrusive” and requires an arrest warrant under a section of the Canadian Charter of Rights and Freedoms that protects against improper search and seizure.
“Access to this data would enable the service to infer a person’s personal lifestyle,” he wrote.
“Hence the information in my opinion [redacted] can reveal lifestyle choices and private activities that individuals seek to maintain and protect from government agencies. Your expectation of data protection in this information is appropriate. “
CSIS argued that some of the most valuable information it receives in support of its intelligence mandate often comes from intercepted communications from “foreign individuals affiliated with foreign states, groups of foreign states, or foreign corporations”. (Sean Kilpatrick / Canadian Press)
O’Reilly said that CSIS is within its power to use Cellular Location Simulators (CSS) as is. The devices can display the country of the user’s cellular account and the make, model, and serial number of the device.
The decision stated that the Agency’s mandate for the collection of foreign information provides “a sufficient and appropriate legal basis” for these types of searches without guarantee, provided they are “minimally intrusive and carried out in an appropriate manner”.
CBC News has approached CSIS for comment.
The communications of the MPs could be swept under mandate
The Federal Court of Justice also said that CSIS should improve its policies regarding the collection of “random” information it collects on Canadians, including elected officials, as part of its mandate to collect foreign intelligence.
Under the Security Intelligence Service Act of Canada, the agency may collect information about the “skills, intentions, or activities” of foreign states or anyone other than a Canadian citizen and permanent resident in order to assist defense and foreign ministers.
As part of the arrest warrant application, questions were asked about the accidental interception of communication between members of federal or state legislatures and foreign actors.
For example, O’Reilly said that an overseas target observed under a court-approved warrant may call a MP to discuss a matter of mutual interest or concern. The member’s comments could then be intercepted on the side due to the arrest warrant.
O’Reilly called it “an inevitable consequence of the gathering of foreign intelligence agencies”.
“I found the service’s conduct in general appropriate and satisfactory. I suggest, however, that the service develop guidelines for disseminating and de-minimizing the identity of Canadians whose communications are accidentally intercepted and for the court to comment . ” he wrote.
“It should also be explicitly disclosed when there is a possibility that communications from an elected official or other official could be intercepted so that the court can determine the necessary conditions for the execution of the warrants.”
Regarding communications by the elected officials, the judge said his concern for greater diligence resulted from the potentially classified nature of the information.
“It is not parliamentary privilege itself that creates the need for additional diligence. In fact, few officials could really claim privileges. The concern with gathering information on officials is that the service may intercept highly sensitive messages that are originated from individuals who are accused of the government of Canada, “he said.
“This information, particularly information about the identity of the Canadian people involved, must be handled carefully.”
O’Reilly said without better guidelines, decisions about the retention, disclosure and dissemination of this information are left to individual discretion