Canada still hasn't developed new rules for intelligence sharing with U.S. and allies

It’s been four years since a commissioner recommended Ottawa put more rules on its spying relationship with the Five Eyes. The Trudeau government says they’re still working on it.
Justin Ling
Montreal, CA

The watchdog that oversees Canada’s main digital intelligence agency says it’s time for Ottawa to draft rules on how information is shared with the United States and other close allies. But, even after four years of prodding, the government says it still has no timeline for when the new rules will be drafted.

Given growing concerns about President Donald Trump’s administration, especially after the president offered up classified foreign intelligence during a closed-door meeting with Russian officials that may have compromised an Israeli operation, these calls have become more relevant than ever.

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In his most recent report, Jean-Pierre Plouffe, the commissioner who oversees the Communications Security Establishment (CSE), repeated a recommendation that the government ought to issue a new directive on how the intelligence agency shares information with the Five Eyes — the intelligence pact made up of Canada, Australia, New Zealand, the U.S., and the U.K.

Reports by the commissioner are notorious for their lack of specifics and vagueness.

He first made that recommendation in July, 2013. His office “was unable to assess the extent to which [Five Eyes] partners follow the agreements and protect the private communications and information about Canadians” when it comes to intelligence sharing, Plouffe wrote in 2014.

In his most recent report, Plouffe writes that his initial review “raised the broader issue of the relations and agreements among partners.”

Reports by the commissioner, which are prepared for public consumption, are notorious for their lack of specifics and vagueness.

He adds that the directive from the minister is being developed “that will explicitly acknowledge the risks associated with this type of sharing, given that CSE cannot, for reasons of sovereignty, demand that its Five Eyes partners account for any use of such information.”

In a statement to VICE News, Defence Minister Harjit Singh Sajjan’s office said the office is “ committed to addressing the issue that you – and the CSE Commissioner – have raised”. A spokesman promised more to add in the future.

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A more detailed statement, from CSE, contends that the signals intelligence agency already has a “robust suite of privacy measure” applying to information sharing.

“As noted in the Commissioner 2013-2014 annual report, this is a significant undertaking.”

“At the same time, CSE continues to work on the in-depth analysis required to support the ministerial directive on information sharing activities with its Five Eyes partners,” the statement reads. “As noted in the Commissioner 2013-2014 annual report, this is a significant undertaking.”

Generally, the rules around how CSE works with its Five Eyes counterparts is murky, at best. It is understood that members of the pact do not target surveillance at citizens of each other’s’ countries, unless it is a matter of urgency.

While CSE is not technically allowed to conduct surveillance on Canadians, it can collect information on anyone inside the country if it is doing so in conjunction with the Canadian Security Intelligence Service (CSIS).

Sharing intelligence on targets of CSE and CSIS could result in their arrest or torture abroad. Plouffe’s report notes that CSE had to prepare 161 risk assessments over the course of a year where sharing intelligence with its partners — including, but not limited to, the Five Eyes — could risk in “mistreatment” of an individual, including 35 cases where that risk was “substantial.”

In those cases, CSE must take steps to reduce the chance of harm befalling the individual, or, if that can’t be done, share the intelligence only if the benefits outweigh the risks.

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In the past, Canadian intelligence services have been faulted by the courts for sharing intelligence on Canadian residents that resulted in their arrest and torture in repressive regimes abroad.

CSE could also use or share information that may have come from Canadian intelligence assets worldwide, or which was obtained through Canadian-specific operations.

That job became a lot harder when Trump became president.

To that end, it is critically important that Canada manage who obtains the intelligence.

That job became a lot harder when Trump became president.

Earlier this year, in a closed-door meeting with Russian Foreign Minister Sergey Lavrov and Ambassador to the U.S. Sergey Kislyak, Trump reportedly divulged intelligence regarding a plot to take down commercial airlines with the use of bombs disguised in laptops.

The White House confirmed that details of the plot were shared, but denied that it identified Israel as the source of the intelligence. Unnamed officials later told American media outlets, including ABC News, that the life of the Israeli asset was put in danger by Trump’s disclosure.