Annex A: CSIS ACT diagnostique
CSIS: A 1984 Act in a 2019 world
To pursue its mandate effectively, CSIS must be confident that it has the authorities and tools to investigate threats to national security and to advise Government. Though the National Security Act (2017) made significant and critical changes to the CSIS Act, the context in which CSIS must fulfill its mandate today necessitates further changes to ensure CSIS can meet the expectations of the Government and Canadians.
CSIS was born out of a time of controversy following scandals of the Royal Canadian Mounted Police Security Service. This resulted in recommendations of the McDonald Commission to establish a separate civilian intelligence agency, distinct from law enforcement with no mandate to counter threats. As a result, CSIS’ authorities were very carefully circumscribed with clear legislative limits. The primary mandate of the Service was to investigate threats to the security of Canada as defined in the Act. The concept of “strictly necessary” was built in to CSIS’ primary mandate, ensuring strict limits on CSIS’ collection of information and intelligence. Information sharing and disclosure was limited to government entities, reflecting the context of the time. A secondary mandate was the collection of foreign intelligence, which was to be fulfilled “within Canada”.
Since 1984, the global context in which CSIS operates has significantly shifted. While the CSIS Act was carefully calibrated to respond to concerns of the day, changes in the threat, operational, technological and legal environment have created significant challenges. Expectations of CSIS and the world in which it operates have changed, and the Act has not kept pace.
The threat environment has been transformed since 1984. When CSIS was created, the international landscape was dominated by the Cold War, with the Soviet Union a clear and present danger to Canada. While counter-intelligence was the main focus, subversion was also an investigative priority for CSIS, including investigating domestic groups with perceived sympathies to the Communist cause. International terrorism was limited and yet Canada was about to experience its single worst incident of domestic terrorism with the bombing of Air India flight 182 en route from Toronto to London, which killed 329 passengers and crew, mostly Canadians. The fall of the Soviet Union significantly changed the focus of CSIS’ investigations in parallel to the rise of international terrorism.
The threat environment today is complex, continuously evolving, diverse and global
The events of September 11th ushered in a new era of transformation, with terrorism occupying a significant portion of Canadian’s collective attention for almost two decades. Terrorism remains the top threat to public safety and national security, including the threat posed by groups such as Al Qaeda and Daesh. But ideologically-motivated extremism has emerged as a pressing challenge. Access to highly secure communications and global threat communities networked via the Internet mean the investigative context of today is highly complex.
Espionage, like in the Cold War, continues to persist and represents a significant strategic threat for Canada; however, the context has radically changed. Hostile state actors seek to leverage all elements of state power to advance their national interests, conducting activities that are detrimental to Canada’s economic, industrial, military and technological advantage. In this space, national security and national interest increasingly blur as hostile states are enabled by powerful cyber tools and target Canadian private industry and research institutions, including academia, to steal intellectual property. The very core of Canada’s democratic society – political institutions, officials and even elections – are targets of foreign interference.
CSIS must increasingly engage with non-traditional partners
To operate effectively in this new threat environment, the scope of actors with whom CSIS must engage has radically shifted. In the global counter-terrorism context, CSIS may need to engage with non-traditional partners [REDACTED]
In parallel, the blurring of national security and national interest necessitates engagement with a wide range of stakeholders, including private companies and academia who undertake sensitive research which is targeted by hostile states. [REDACTED]
Technology and privacy expectations have evolved, rendering some limitations inoperable and necessitating more flexible tools
When the CSIS Act was written, a wiretap to intercept the communications of a threat actor could be done with alligator clips on a telephone wire. The Internet, smartphones and artificial intelligence were more science fiction than reality. Similarly, information was locally available, stored in one place, and transmission was straightforward. Today, a single message may transit through multiple jurisdictions at the same time and be stored in the “cloud”. Information is no longer geographically bound, but global. The massive volume and variety of digital communications provides both enormous opportunities for intelligence collection as well as challenges. While tools such as encryption are essential for safeguarding Canadians and Canadian institutions, threat actors exploit these developments.
Amidst this enormous technological evolution, expectations of privacy and related jurisprudence have also shifted. Collecting basic information regarding digital communications is an initial investigative step. However, legal interpretations, such as the Supreme Court decision in R. v. Spencer, have created authorities gaps to seek such information. The Service must seek Federal Court authorization to get this information and is limited to the warrant provisions in section (s.) 21 of the Act, a “one size fits all” approach based on a “reasonable grounds to believe” threshold. [REDACTED]
The impact of the evolution of technology [REDACTED] In 2018, the Federal Court interpreted the “within Canada” limitation to narrowly mean only “within Canada”, [REDACTED] Justice Noël further stated in the decision that “[w]ith the fast pace of digitization, legal issues that intersect with questions of jurisdiction are becoming more and more complicated by the day.” This issue was certainly not envisioned in 1984 when the limitation was prescribed. [REDACTED]
Beyond technology: the geopolitical context of foreign intelligence has shifted
“Strictly necessary” in an era of artificial intelligence and big data
Issues around the interpretation of “strictly necessary” [REDACTED] In 2016, the Federal Court’s Associated Data decision interpreted the “strictly necessary” limit in s. 12 not only to apply to CSIS’ collection of information, but to its retention as well. CSIS must therefore interpret the concept of “strictly necessary” to collection and retention in an era of data analytics, artificial intelligence and smart phones. [REDACTED] Given the volume and diversity of information CSIS must collect to investigate threat activity, questions therefore arise around “strictly necessary” and the collection of supporting information, [REDACTED]
The Associated Data decision has wide-ranging operational and policy impacts that CSIS continues to work to understand. [REDACTED]
Ensuring excellence: interoperability
While CSIS has the mandate to support the Ministers of Foreign Affairs and National Defence in the collection of foreign intelligence, it has no other assistance mandate [REDACTED] In the dynamic global environment, consideration is needed as to the gaps this creates and how the security and intelligence community can best be leveraged together to support the Government.
Moving forward: meeting Canadians’ expectations of accountability
While the changing threat, operational, technological and legal contexts have created significant challenges for a statute drafted in 1984, it is essential to consider Canadians’ expectations of CSIS as an accountable intelligence service at the core of any potential legislative reform. Though specific limitations legislated in 1984 are now inoperable, the purpose of amending the Act would not be to lower safeguards, but rather to ensure CSIS has the authorities to provide timely, relevant advice in line with Government and Canadians’ expectations of their intelligence service. These expectations include built-in accountability as well as measures to increase transparency to Canadians. This can be achieved, in part, with transparent statutory authorities that enable CSIS to effectively fulfill its duties and functions and provide relevant and timely advice to Government.
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