The Canadian government has proposed new anti-terror legislation that will authorize its spies to look outside its own borders for the first time.
Privacy advocates had feared that two recent terrorist attacks would trigger a push for controversial new powers such as pre-emptively detaining terror suspects and cracking down on pro-ISIS online propaganda.
It appears the government has exercised some restraint while attempting to increase its own powers, but the proposal still includes unprecedented, broad new powers for the nation's spying agencies.
The legislation would set the Canadian Security Intelligence Agency on a path to become a more influential partner within the Five Eyes spy network, a shadowy intelligence collective between Canada, the US, UK, Australia, and New Zealand.
Bill C-44, the so-called "Protection of Canada from Terrorists Act," creates formal powers for Canada's spies to operate abroad, regardless of the laws of the domestic country.
Once passed in the House of Commons, the legislation amends the governing legislation ruling over CSIS, now allowing the agency to conduct its operations "within or outside Canada" and giving federal judges the power to, in a secret hearing, issue a warrant to "authorize activities outside Canada to enable the Service to investigate a threat to the security of Canada."
That means, after a decade of having CSIS' hands tied behind its back when it came to surveilling Canadian targets abroad, it will now be able to globe-trot and snoop on Canadians and foreigners alike.
But with no new oversight powers—just days after a whitewashed report from CSIS' supposed overseers was released, to near-universal panning—there is concerns that these new powers may lead to exploitation.
Stemming from three Federal Court decisions, it was previously understood that CSIS was purely a domestic agency, tasked with coordinating investigations with local police and investigating local threats. That is, unless they had express authority from a foreign state that they could spy in their country.
In recent years, however, the agency has taken on a role increasingly concerned with coordinating with their bulk-data-collecting counterparts—the Communications Security Establishment Canada (CSEC).
The debate around whether or not CSIS's jurisdiction should be limited to Canada became public during a 2007 Federal Court case, when Justice Edmond Blanchard refused to issue a warrant to the agency to conduct intelligence-gathering overseas.
after a decade of having CSIS' hands tied behind its back when it came to surveilling Canadian targets abroad, it will now be able to globe-trot
In two subsequent Federal Court decisions, Justice Richard Mosley similarly slapped-down CSIS' efforts to spy on Canadians and foreigners abroad.
After their first go-around in trying to get Mosley to authorize their foreign spy games was denied, CSIS tried a novel approach—they obtained warrants for individuals, then employed CSEC and other foreign intelligence services, like the National Security Agency (NSA), to do the spying for them.
Problem is, they hadn't let Mosley in on all the details of their plan. In his 2013 summary of the decision, he writes that "having obtained authorization under warrant to conduct such interceptions [REDACTED] from and under the control of Canada, they engaged the assistance of second party foreign allies [REDACTED] and failed to inform the Court that this was being done on any of the subsequent applications."
Mosley went on to write that "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."
He forbade CSIS from the practise altogether. But now, when C-44 becomes law, these practises will become normalized. CSIS will have the power to dispatch spies abroad, just as it will be able to tap CSEC and the NSA to do data collection on its behalf.
It also has the practical effect of letting CSEC skirt its own restrictions. That agency, of course, is forbidden from intercepting the communications of Canadians, unless they are doing so at the behest of another Canadian agency, who has a warrant to do so.
Functionally, that means that CSIS will be able to get a warrant in a secret proceeding, and use that warrant to employ CSEC to intercept all the communications of a Canadian living abroad. That power is quite new.
Security experts aren't exactly raising the alarm about the new legislation, but there are concerns.
"Nothing surprises me," says University of Ottawa law professor Craig Forcese. "This is pretty much as advertised. I'm pretty glad that, in the wake of last week's event, they didn't decide to go back and shovel in a bunch of extraneous issues and make this an omnibus bill."
Forcese, who blogs about national security, is referring to reports that the government was considering wide new powers to allow police to preventively detain suspected terrorists and clamp down on pro-ISIS speech online.
But Forcese says that CSIS has, since the original repudiation from the Federal Court, been working to circumvent the courts and obtain intelligence from around the world anyway. With this legislation, CSIS now has a clear and public mandate to do so.
"I'm actually pleased that, first of all, they're clarifying the scope of the act," says Forcese. "Let's be frank and overt about it."
And, more importantly, it lays out a clear role for the Federal Courts to asses CSIS' case and issue warrants, only if it's appropriate—mind you, even if it's a secret hearing.
Functionally, Forcese says the warrants will allow CSIS agents to go abroad and conduct covert operations in foreign states that may not otherwise be friendly to Canada. That means, perhaps for the first time, CSIS will have free reign to tap the phones of individuals in foreign states—or, more accurately, have CSEC do it.
That means CSIS is now a body unconstrained by territorial boundaries and that it will become an important asset for the Five Eyes partnership. Even Public Safety Minister Stephen Blaney made a nod that the spying coalition will get a boost from this bill.
"The reason we're going ahead with this today is to clarify the authorities of our intelligence services, notably with information sharing, for example, without allies: the British, the Australians, the New Zealanders, and the Americans," the Minister told reporters after Question Period.
Christine Duhaime, a lawyer at Duhaime law who specializes in financial matters such as terrorist financing, says the legislation will have a huge impact on letting CSIS go after suspected terrorists by clarifying their ability to issue warrants to companies like Paypal and Twitter.
"I think we'll see more private sector requests," says Duhaime, pointing out that sites like Twitter are usually reticent to hand over information without a warrant.
To that end, CSIS has already been making warrantless requests for information from these companies for some time, though it's not clear how effective that's been.
One former director general of CSIS says the new international investigative powers are a "game changer."
Marion Bialek, who retired from CSIS in 2002, says turning the domestic body into an international spy shop could pose problems, but has the obvious benefit of removing the need for Canada to piggyback on allies' efforts.
Bialek says that sort of power was already afforded to CSIS on a limited basis, previously, in operations like Afghanistan. His big concern, however, is that weak oversight powers will make keeping-tabs on CSIS' international forays near impossible.
Technically, the spy agency is overseen by the Security Intelligence Review Committee (SIRC). That body, however, is seen as a bit of a joke in the intelligence and security communities.
"It's powers are very limited from an oversight point of view," says Bialek. "There is no oversight process. SIRC is not an oversight body."
SIRC really only conducts yearly public reviews that are so sanitized they sometimes verge on the farcical.
In this year's report, published last week, SIRC found that CSIS didn't have adequate understanding of provincial driving laws, especially given that agents are often on their cell phones while doing physical surveillance. Thus, the report recommends that "CSIS prioritize the request for legal advice pertaining to its liability under distracted driving legislation across Canada."
At another point in the study, SIRC found that "a CSIS Branch" didn't respond to the Committee's request for information over "a sensitive CSIS activity" run by "a unit" because of a need to make "significant improvements to policies governing the activities in question."
Given that SIRC's report are usually incomprehensible, come only at the end of the year, and offer next to nothing in the way of actual oversight, calls for a Parliamentary committee to take over the job have been steadily building.
Both Bialek and Forcese endorse the idea of having Members of Parliament oversee the activities of CSIS and CSEC, instead of the political appointees on SIRC.
On top of the surveillance changes, bill C-44 also affords CSIS new powers to keep the identity of their informants a secret—unless doing so would jeopardize someone else's innocence—and it speeds up when the government's controversial citizenship-stripping powers will come into force.
The latter changes will mean that the Minister of Immigration will have more authority to create regulations over how he strips Canadians of their citizenship, and when the powers come into effect.
So in other words, look out Canada, we might finally have spies worth writing pulp fiction about.