Watching the Watchers

MPs, senators want elected officials to keep an eye on intel agencies
February 5, 2014 Updated: February 5, 2014

PARLIAMENT HILL—The Senate’s national security committee hosted a G-rated review of Canada’s two leading intelligence agencies on Monday amidst a broader debate about whether the privacy of Canadians is being properly safeguarded.

Spurred on by revelations that Communications Security Establishment Canada (CSEC) collected the metadata of Canadians who accessed free Wi-Fi at a major Canadian airport, several MPs and senators are now calling for changes to the current system.

At the committee meeting Monday, CSEC’S chief John Forster did his best to assuage concerns his agency was snooping on Canadians, but offered up circuitous logic that didn’t address central questions regarding the incident in question.

That’s the opinion of Randall Garrison, the NDP’s public safety critic. Garrison said it was hard to even assess what problems may exist because MPs could not review any of the highly classified activities of intelligence agencies.

“How can we know? We don’t have independent oversight,” said Garrison.

Under current laws, CSEC is strictly prohibited from spying on Canadians. Its mandate to monitor and collect intelligence from foreign sources does, however, mean that from time to time it cannot help but incidentally collect some Canadian communications. In those cases, it must seek authorization from the Minister of National Defence to continue forward.

But Forster made it clear that in the airport Wi-Fi instance, the minister was not consulted because the agency was collecting metadata rather than personal communications, and also because it was acting under the provisions of ministerial directives from 2005 and 2011 that permitted these activities.

In other words, because the agency collected metadata—which Forster went to lengths to explain was not the content of actual communications but rather data about that data, such as the time of day, length of usage, etc.—it had not broken the law.

Forster said the agency was collecting the metadata to help it create a model that would help it better target its intel collection efforts.

“We use metadata to be able to make sure we’re not directing our activities at a Canadian phone number, a Canadian IP address, and to avoid targeting Canadian communications,” he said.

That position is contradicted by a statement from Dr. Ann Cavoukian, Ontario’s Information and Privacy Commissioner, who said in July that metadata “can reveal the details of an individual’s personal, political, social, financial, and working life.”

That fact is why CSEC’s activities have reignited calls for parliamentary oversight. 

Lack of Scrutiny

Senator Grant Mitchell and members of the NDP worry that CSEC and the Canadian Security Intelligence Service (CSIS) are not scrutinized closely enough. 

CSEC’s activities are reviewed by a part-time commissioner who reports to the Minister of Defence, and CSIS is reviewed by the Security Intelligence Review Committee (SIRC), which reports to the Minister of Public Safety. Neither of those review structures, however, include MPs or senators—something critics say keeps too much information in-house.

Mitchell wants to see a parliamentary committee with security clearance to fully review the agencies’ activities. At the moment, much of that information is classified, which is why the committee’s hearing on Monday focused on process but could not get into operating details.

Mitchell would also like to see that parliamentary committee take a proactive stance toward creating policy and governing those agencies. He says parliamentarians have a role in representing Canadians interests. 

“It’s very easy to become bogged down in one perspective unless you’re challenged, and parliamentarians in other parties would provide that challenge.”

It was a call echoed the next day in a motion moved by NDP critic Wayne Easter that criticized CSEC’s actions and called for a National Security Oversight Committee outlined in a private member’s bill he had sponsored in October. 

Members of such a committee would be permanently bound to secrecy and have clearance to review the classified national security activities performed by federal departments and agencies like CSIS and CSEC.

But some, including Conservative MP Daryl Kramp, who chaired the Public Safety and National Security Committee, question if such a committee is necessary.

“It is always a delicate balancing act between protecting privacy and protecting security. Of course, if you go out of whack either way, you are either not going to do the job of protecting public safety, or if you go too far the other way, you are going to infringe on privacy,” he said.

Kramp said currently those agencies have layered review mechanisms that include parliamentary oversight, judicial oversight, as well as final accountability to their respective ministers. Those mechanisms appear to be working well, he said.

“Quite frankly, I am comfortable that we have enough layers in place now to not only identify problems, but then take action and respond to them.”

Kramp said he has not seen a specific incident that counters that confidence but would continue watching the situation before closing the door entirely.