Under C-59, unauthorized data collection still a risk: professor

OTTAWA — On Tuesday morning, University of Ottawa law professor Craig Forcese told the House of Commons committee on public safety and national security that the way new intelligence Bill C-59 is written leaves some Canadians’ constitutionally-protected data open to collection without independent judicial authorization. Bill C-59 proposes an update to the legislation concerning the activities of Canada’s foreign signals intelligence agency. According to the details of the bill published in June, instead of falling under the National Defense Act, the Communications Security Establishment (CSE) will now have its own dedicated legal framework. Should the bill become law, the CSE will fall under new privacy and accountability features, but that’s not to say it doesn’t have any bugs. “If we fail to cure the existing problem with CSE's collection authorization process, a court may ultimately determine CSE has been collecting massive quantities of data in violation of the Constitution,” said Forcese during his testimony to the standing committee. Under current legislation, with just a ministerial approval, the CSE can incidentally collect private communications belonging to Canadians during the course of investigating foreign entities “without advance authorisation by an independent judicial officer,” said Forcese. Currently, metadata — which falls outside the definition of private communications — would not even need ministerial authorization for CSE to collect. Forcese said this likely violates section 8 of the Charter of Rights and Freedoms, which protects Canadians against unreasonable search and seizure. The proposed Bill C-59 would create the position of an independant intelligence commissioner who would vet the data collection request in advance for “reasonableness,”, in addition to the ministerial authorization. But according to Forcese, the only wrinkle is a condition that means that this new commissioner would only need to be consulted when the request for data would run at odds with an “act of Parliament.” Forcese proposed to the committee an increase to the scope of the trigger for an in-advance, independent authorization of CSE’s information collection activities to include any data for which Canadians have a reasonable expectation of privacy. This would align it better with the Charter, he said. Forcese told the committee that “some collection of information in which a Canadian has a constitutional interest does not violate an act of Parliament. For example, some sorts of metadata.” In a follow up phone call with the Wire Report, Forcese outlined Canadians’ communications info which could be incidentally collected during surveillance of a foreign party, like phone call metadata, web address data (URLs), and search history, which would not trigger the intelligence commissioner's involvement. “I may have a reasonable expectation of privacy in that, that does extend to my electronic trace information that might be spewed out here, there and everywhere, but because the Parliament itself hasn't enacted all these safeguards into separate statutes, it's hard to see how CSE would be violating an act of Parliament,” said Forcese in the call. As they work with the CSE, Forcese also pointed to the risks for telecommunications companies, which felt the heat when the Edward Snowden revelations came to light, for example. “There's a reputational interest of the telecoms to make sure that when they partner with government agencies, they're not partnering with a government agency that's going to cause them collateral reputational damage because of some scandal,” he added. Forcese believes so far the players who are leading the process to enact the new legislation have been open to feedback and he feels modifying the language to include the charter requirements wouldn’t be difficult. “The government has already acknowledged that this is a problem, and the government is already trying to fix it,” said Forcese. “It just requires about five additional words to fix it in C-59, and I think it would be crazy not to fix it now.” — With reporting by Bryson Masse at bmasse@thewirereport.ca and editing by Anja Karadeglija at akarad@thewirereport.ca

Under C-59, unauthorized data collection still a risk: professor

News | December 6, 2017

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Under C-59, unauthorized data collection still a risk: professor

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