How Canada's Spy Agencies Cozied Up to the NSA

The NSA and its Canadian counterparts are friends with benefits, court docs reveal.

Nov 7 2014, 1:30pm

Image: Pete Souza/Wikimedia Commons

Pulling in the American National Security Agency to intercept Canadians' communication is "the norm," according to Canada's spy agencies.

Revelations like that, which came out of a series of court cases over the last year, prove that the Five Eyes are quickly becoming one big cyclops, and Canada doesn't give a damn if you don't like it.

The story goes back to March, when a Federal Court judge demanded details of just how the Canadian Security Intelligence Service (CSIS) goes about doing NSA-style surveillance. The details of that case just came out this week.

Usually, Canadians have virtually no clue what their spy services are doing. This information has only wiggled its way into the limelight because CSIS screwed up.

In 2008, CSIS applied for a warrant to team up with its sister agency, Communications Security Establishment Canada (CSEC) and the NSA, to do surveillance on a Canadian suspect. We don't know why they asked for the surveillance, what the Canadian was suspected of doing, or who that suspect was—the case refers to him, her, or them as X.

That warrant was denied by a Federal Court judge. He found that CSIS had no right to be keeping tabs on Canadians abroad, in violation of international law, as its mandate was strictly domestic.

Tail between its legs, CSIS went back to the drawing board. A few months later, they tried again, with a different judge—their warrant made no mention of overseas surveillance, stating that they planned to do all the surveillance from within Canada.

Since it looked like just about every other warrant brought forward by CSIS, Justice Richard Mosley—a well respected jurist—signed it.

Four long years later, Mosley was flipping through an annual report from the nominal overseer of CSEC. One sentence in it caught Mosley's eye, where the commissioner recommends that CSEC: "provide the Federal Court with explicit evidence in…warrant applications that CSEC's assistance to CSIS might include the interception of private communications of the Canadian subjects…by CSEC's second party partners in the United States, United Kingdom, Australia and New Zealand, and also involve the sharing of identity information of those Canadians with the four partners."

Mosley hauled lawyers from CSEC and CSIS before the court and asked: were you using the warrants I signed to bring the NSA into this?

Both agencies sheepishly answered: yes.

Mosley proceeds to spank the two up and down the court, writing "the failure to disclose that information was the result of a deliberate decision to keep the Court in the dark about the scope and extent of the foreign collection efforts that would flow from the Court's issuance of a warrant."

The Canadian Government, however appealed. They argued that they're not required to disclose their spies' close working relationship with the bulk data collection behemoth that is the NSA, stating that the cooperation "is not a material fact which could have been relevant" to tell a judge when obtaining a warrant.

Evidently, the government wasn't tremendously confident in that approach, hence why they introduced legislation specifically legalizing CSIS' cooperation with the spooks at Fort Meade, Bill C-44.

They were probably right to be nervous. Last week's Federal Court of Appeal decision just prolonged the tongue-lashing that the spy agencies received from Mosley.

The ruling noted that one CSEC employee cross-examined by the court "candidly stated that his evidence in [the warrant application] was 'crafted' with legal counsel to exclude any reference to the role of the second parties."

The court, naturally, wasn't thrilled about that, and ultimately denied the appeal. Stephen Harper's Conservative government now plans to appeal that case to the Supreme Court.

Jon Penney, a law professor at Halifax's Dalhousie University, a fellow at Harvard's Berkman Centre, and a fellow at University of Toronto Citizen Lab, says the government is fighting back against the court's insistence that CSIS and CSEC keep them up-to-date on its operations. He figures that Ottawa doesn't really care that the courts have handcuffed CSIS to the radiator, as "you could argue that C-44, once passed, will render that part of the decision"—the part that forbids CSIS from spying on people in different countries—"moot."

But the case also revealed some interesting morsels about CSEC's internal operations.

The Court of Appeal included a section from an internal CSEC memo on "2nd Party Assets" in its decision, explaining: "these are CSEC's SIGNIT [Signals Intelligence] counterparts within the 5-Eyes community — namely, the US, UK, Australia and New Zealand. Allowing CSEC to share our collection requirements with 2nd party [REDACTED] assets [REDACTED] Although the Service has recognized that the use of 2nd Party SIGNIT assets for targeting could eventually lead to the tasking being attributed to the Service, upper Service management has agreed that the use of 2nd party assets will be the norm. The 2nd party assets will not be privy to specific details about [REDACTED] our [REDACTED] targets."

Translation? The integration of the Five Eyes—that partnership that supposedly forbids spying on each others' citizens—is complete. Canadian courts can now authorize the NSA to spy on perceived threats to Canada, and, ostensibly, the NSA can do the same through its courts.

That's not a huge surprise, given that it's precisely what Edward Snowden told us.

But what is interesting is that the cooperation isn't on an ad hoc basis—it is now, as CSEC phrases it, "the norm." One of the more worrying aspects is that it all runs through CSIS, which spends an awful lot of its time spying on First Nations activists and environmentalists.

Legislation that would have, by the way, installed more oversight and accountability for CSEC was unceremoniously killed this week.