Spy Agency Watchdog Strikes a New Pose

Published in the Ottawa Citizen, August 23, 2014

The old adage in the spy business, when it came to publicity, was “no news is good news.” That ceased to pass democratic muster in Canada only in the mid-1980s and we have been slowly turning our minds to greater scrutiny of the intelligence game ever since (and with increased earnestness after 9/11).

Over the past year, Edward Snowden has screwed our attention to what was the last bastion of the old adage, the activities of signals intelligence agencies, represented in Canada by the Communications Security Establishment (CSE), soon to move into a gleaming new technopalace in Ottawa. For madein-Canada news on CSE, we rely heavily on the annual reporting of a small and little known watchdog agency, called the Commissioner of the CSE.

There is a lot more that will have to be dragged kicking and screaming out of the deep pool of secrecy that surrounds CSE, and a lot more reflection about what constitutes good laws around surveillance, before Canadians can be truly reassured that all is well with our spying.

The CSE commissioner has been around since 1996, but for much of its existence it has toiled in obscurity, shackled to the Official Secrets Act, showing every sign of liking its shackles, showing little relish for any public truth telling function, and displaying a tortuous relationship with what George Orwell called plain English.

But times have changed and a new CSE commissioner, retired Quebec Superior Court judge Jean-Pierre Plouffe, along with his minuscule staff of 11, have found themselves moved to centre stage in the governance of the Canadian intelligence system. They are bearing the burden of a demand for greater transparency around sensitive intelligence-gathering operations, a burden the government is all too happy to offload on the commissioner’s shoulders.

M. Plouffe’s first annual report as CSE commissioner was pushed through the mail slot of an empty House of Commons on Aug. 20. It is notable for its promises and for its muscular pose, even if it didn’t get much of a chance to strut the Parliamentary stage.

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The commissioner promises vigilance around the protection of Canadian privacy as CSE goes about its secretive electronic intelligence activities, and vows to pay regular attention to metadata, the latest trend in signals intelligence gathering (involving analysis of network systems and flows rather than content). A CSE metadata effort hit the headlines in January when Snowden’s media contacts released the story of CSE’s airport Wi-Fi project, which scooped up wide-ranging data on communications flows in an out of an unnamed Canadian airport (probably Pearson International in Toronto). Commissioner Plouffe promises (for the first time in his office’s history) to “push the limit” to enhance his office’s public reporting and ability to inform Canadians. The commissioner even suggests that he will look for ways to work with his foreign counterparts, especially the review bodies in the “Five Eyes” network of intelligence agencies that link Canada with the United States, United Kingdom, Australia and New Zealand, to better understand global intelligence sharing and the impact its has on efforts to apply national laws and procedures around privacy protections. This sounds like a welcome effort to loosen the official secrets shackles, try plain English, and explore a new relationship to public truth telling.

All new brooms have their more hesitant and timid strokes, and Commissioner Plouffe’s first annual report is no exception. The report makes only a tired and offhand comment about the long-running battle between the CSE commissioner and the government over the inadequacies of the legislation that governs CSE, and cannot even bring itself to explain what the problem is. The report upholds CSE’s metadata collection as properly focused on foreign intelligence objectives and innocent of impacts on Canadian privacy without going into any kind of explanation of how the CSE metadata program works or of the fact that its “lawfulness” is based on a government interpretation that metadata does not constitute a “private communication” under the law and hence is exempt from privacy protections. The commissioner’s annual report gives no scrutiny to the nature or adequacy of the system whereby the Minister of National Defence authorizes CSE to engage in certain forms of intelligence collection that can result in the inadvertent acquisition of Canadian communications while going about its foreign intelligence and cyber-security missions.

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The CSE commissioner has some looming issues to grapple with, many of which it has come to belatedly. This year’s annual report signalled one of them. CSE is embedded in a global signals intelligence alliance and is, as the saying goes, a net importer. We import much more intelligence than we export, which is of great benefit to our national security, but comes with some potentially troubling issues around how Canada shares its intelligence with others while protecting privacy, and how our allies deal with Canadian intelligence and share with us. The real takeaway from this year’s annual report was not the statistic that only 66 private Canadian communications were retained by CSE (a reassuringly small number at first glance) but rather the fact that CSE has jealously guarded even from its own minister the question of how much Canadian content communications it acquires from its allies. We are left to wonder how much of our net import is actually Canadian communications, a concern underpinned by the fact that our greatest source of imported intelligence is the U.S. National Security Agency, and that all of the Snowden revelations suggest that the NSA has developed a gargantuan appetite and capacity for global surveillance with few observed niceties around spying on allies.

Canada needs an effective CSE to collect vital intelligence and serve as an effective watchdog to ensure that lawfulness prevails. There is a lot more that will have to be dragged kicking and screaming out of the deep pool of secrecy that surrounds CSE, and a lot more reflection about what constitutes good laws around surveillance, before Canadians can be truly reassured that all is well with our spying. A good pose on the part of the new CSE commissioner will have to become a permanent posture.

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