About this Project

This blog comments on Canadian (and occasionally comparative) national security law to update my National Security Law textbook and now also my 2015 book, False Security: The Radicalization of Anti-terrorism, co-authored with Kent Roach.

Please also see www.antiterrorlaw.ca for Bill C-51-related analyses by Craig Forcese and Kent Roach.

For narrated lectures on various topics in national security law, please visit my 2017 "national security nutshell" series, available through iTunes.

 

For a continuing conversation on Canadian national security law and policy, please join Stephanie Carvin and me at A Podcast Called INTREPID.

 

Please also visit my archive of "secret law" in the security area.

By Craig Forcese

Full Professor
Faculty of Law

Email: cforcese[at]uottawa.ca

Twitter: @cforcese

 

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Friday
Feb022018

Does CSE risk a Re X moment with the current drafting in C-59?

This is a third quick posting on some of issues I have been wondering about in the CSE Act, proposed by bill C-59. I have not reviewed all the submissions to the Commons national security committee (which have been often excellent and thoughtful).  But I am not aware of any discussion so far on today’s topic: lining the CSE Act up with international law.

Here, my preoccupation is with active and defensive cyber operations, and not foreign intelligence collection.  The latter raises arguably similar international law issues, but I have canvassed those elsewhere, in other contexts. (See here and here). (On this issue, I am in receipt of a new article from European colleagues examining this same question – which I look very much forward to reading.)

Nor do my remarks relate to CSE’s (cyber) participation in an armed conflict. Such involvement would, I assume, arise in an exercise of the CSE’s assistance mandate, in relation to the Canadian Armed Forces. There, an obvious concern is with CSE’s direct participation in hostilities, while an unprivileged belligerent (that is, something other than an armed force). This prospect raises real concerns under the laws of armed conflict.  Not least: participating CSE employees could be targeted and prosecuted for their conduct, enjoying neither protected status or combatant’s immunity. But I hope to able to point readers to an excellent digest of those issues by a more expert analyst soon.

My focus here is on CSE’s autonomous active/defensive cyber mandate, anticipated in sections 19 and 20 of the proposed Act. And so, active cyber may involve activities on or through the global information infrastructure to degrade, disrupt, influence, respond to or interfere with the capabilities, intentions or activities of a foreign individual, state, organization or terrorist group as they relate to international affairs, defence or security.

That is a vast mandate, constrained by a caveat that the activities be outward facing from Canada and not cause (intentionally or by criminal negligence) death or bodily harm or willfully attempt in any manner to obstruct, pervert or defeat the course of justice or democracy.

CSE is exempted from a narrow range of law

Cyber ops must be authorized by the defence minister (in the case of active cyber, blessed or requested by the foreign affairs minister). But the activity itself need not comply with “any other Act of Parliament or of any foreign state” (s.31; 30).  As far as I can tell, this is the only carve-out pertaining to other legal regimes applicable to cyber ops.  (If I am missing something, happy to be disabused.)

And the modest scope of this carve-out is what gives me pause. If it enacts this provision, Parliament authorizes violations of federal and foreign “Acts”, something it is free to do in a system based on parliamentary sovereignty.

CSE is not exempted from international law

Parliament is also free to authorize violations of Canada’s international law obligations. This does not relieve Canada of state responsibility in international law for such violations.  But it does make it legally possible in domestic law to violate international law.  But herein lies the rub. The Supreme Court has made it abundantly clear that Parliament is assumed to legislate in compliance with Canada’s international obligations, and that deviations from this presumption cannot be presumed. Instead, there must be “unequivocal legislative intent to default on an international obligation”.  See Hape, para. 53.

This was the exact issue that ensnarled CSIS in the Re X decision on extraterritorial invasive surveillance. Parliament corrected that problem in bill C-44 (2015), by permitting the Federal Court to authorize warrants even in violation of foreign or “other” law. “Other” in the context might reasonably be construed as “international”, although it might be argued otherwise.

Strangely, the CSE Act does not do this. It does not replicate the CSIS bill C-44 formula of “foreign and other laws”. It reaches, at best, foreign “Acts” (that is, primary legislation). I do not see how this reference to “Acts” can be read to empower CSE to violate international law. (Indeed, I do not see it as unambiguously authorizing violations of other possible sources of foreign law – for instance, constitutional, common law or regulations or equivalents. But the international law issue is the big question, since it binds Canada). There is much international law indisputably applicable to Canada that is not codified or covered in foreign “Acts”.  Indeed, it would be incongruous, indeed patently ridiculous, to assert that foreign “Acts” constitute the sum total of international obligations binding on Canada.

International law precludes extraterritorial exercise of enforcement jurisdiction

Accordingly, were I giving legal advice in relation to an active cyber operation, I would conclude that CSE cannot act, unless that cyber operation complies with international law. And that raises the big issue: international law precludes the exercise by a state of “enforcement jurisdiction” on the territory of another states, without its consent or some other permissive rule of international law. I have discussed here the application of the “enforcement jurisdiction” in a cyber context. Where it might exist will be debated, on the margins. But the more kinetic the impact of the active cyber, the more likely the violation of this norm.

(And I’d add that the permission to breach “Acts of Parliament” offers no different answer on this question.  As Hape notes, customary international law – of which the bar on extraterritorial enforcement jurisdiction is a part – is considered part of the common law of Canada – and that is only displaced by statute. The CSE Act does not displace it. It does not displace any Canadian law other than “Acts of Parliament”.)

The result should be a real and significant fetter on exactly what sort of activity CSE can perform as part of its unilateral active/defensive cyber mandate.

I have no real issue with this as a policy choice – by disposition I am not tremendously keen on a state doing an end-run around established doctrines of international law using data streams where it cannot use corporeal bodies.

Was this a policy choice or a drafting issue?

My concern is, however, that the government may not have fully turned its mind to this issue in designing the CSE Act. Put another way, it may have drafted an outcome it does not intend to honour. If it really does think it has exempted CSE from the considerable strictures of international law, and CSE acts accordingly, CSE may have its own Re X moment. If its policy objective is a muscular cyber ops capacity, the government may wish to have Parliament speak on the international law issue in an amendment – because silence retains the full international law fetter.

(And if that weren’t enough, we need to look over our shoulders at this throw-away line from the Supreme Court in Hape: “Neither Parliament nor the provincial legislatures have the power to authorize the enforcement of Canada’s laws over matters in the exclusive territorial jurisdiction of another state.” We’ll assume that the Supreme Court did not mean to suggest that Parliament lacks jurisdiction – period – to authorize invasions of a foreign state’s sovereignty.) 

It is true this kind of esoteric legal issue may never be adjudicated. But people have been saying things like that for years. I am still waiting for it to be true.

Wednesday
Jan312018

The (Quasi) Judicialization of CSE Cyber Operations (Active & Defensive)

 

As noted in my prior post, there are a number of really interesting briefs prepared by various stakeholders, going into the next round of House of Commons legislative hearings on bill C-59.  Many seek to ratchet tighter the accountability structures in the bill, especially for CSE and CSIS (where they don’t call for the outright abandonment of these agencies’ proposed new powers).

I haven’t had chance to review all the specific ideas, but two of these sets of recommendations stand out for me in this area.  In my last post, I addressed the question of “publicly available information”.  In this one, I want to noodle through the extremely complex question of whether the Intelligence Commissioner should have oversight jurisdiction to vet and approve, in advance, and on a reasonableness standard CSE’s proposed active and defensive operations (“cyber ops”).

Citizen Lab and the current CSE commissioner have both urged this role for the new Intelligence Commissioner, supplementing that official’s responsibility to vet ministerial authorizations issued for foreign intelligence (FI) and cybersecurity (CS).  (As an aside: for my part, I have suggested that the ministerial authorizations for FI and CS do not meet constitutional standards, because they are only required where CSE violates an “Act” through its collection.  So if at issue was “private communication”, intercept without authorization would violate the Criminal Code.  But the government has argued that private communication does not include metadata.  In fact, there is no Act of Parliament violated by the foreign collection of metadata, including the incidental collection of Canadian metadata -- if there was, CSE would have been violating it for years. And so, under the current drafting of C-59, there is no requirement to seek a ministerial authorization vetted by the IC.  And yet, there is a clear constitutional privacy interest in that metadata. There is *nothing* in either the current CSE law or the proposed CSE Act that meets the standards in the jurisprudence permitting “warrantless” intercepts -- or could meet that standard, in my view, given the nature of CSE’s bulk activities. End result: a new constitutional lawsuit, scandal, acrimony, disaster. Please, please fix this! Make sure the authorization process is triggered by all collection activities or classes of activities that engage information in which a Canadian or person in Canada has a reasonable expectation of privacy.)

The CSE Act Structures Cyber Ops MAs and FI/CS MAs Differently

But back to the proposal to extend the IC function to cyber-ops.  First observation: for cyber-ops, ministerial authorizations are required for all cyber-ops (s. 23(2)(b)).  This isn’t like FI and CS, where there is a trigger obliging some activities to go for approval and not others (s.23(3) and (4)). In my comment above, I suggest the FI/CS MA trigger is too narrow. I *want* to steer FI and CS activities that implicate Charter rights into the MA and then the IC process. But I am not proposing steering those that *do not* otherwise violate Canadian law through this process.  I do not think, for instance, that a CSE targeted intercept that collected the telephone call of a foreign person in a foreign state, with no prospect of any nexus to Canada, attracts Charter rights. Without embarking in a discussion of the Supreme Court’s (unclear) Hape decision, it would be unlikely that the Charter applies, and that the target has any section 8 rights. And I am not among those inclined to think international law imposes meaningful privacy obligations on Canada in these circumstances – and certainly not a judicial pre-authorization requirement.  I do think there could be extraterritorial enforcement jurisdiction violations in international law, but in the area of spying it is a close call; international law is, as I have said, creatively ambiguous in this area. So I would not embark on the “judicialization of intelligence” in such a manner, again assuming there was no prospect of a Canadian nexus.  I make these sorts of points in greater detail in this article.

So my initial point: To simply superimpose IC oversight on cyber ops MA means, under the current architecture, asking the IC to approve all CSE cyber ops activities. (ss. 30 and 31). 

Would this be a good thing?

That may sound like a good idea right out of the gate.  But I have been going around in circles because I find it complex. I thought I’d memorialize my struggles.

  • First, cyber ops should not, if the Act is applied properly, implicate the collection of information, except as properly authorized by a FI/CS authorization (s.35(4)).  Right away, this makes it unlawful under the statute to use cyber ops as a stalking horse for some sort of autonomous information collection activity (on top of likely unconstitutional to the extent that information collected does attract s.8 protections). So the privacy issues should be muted here, even if the activities authorized by the cyber op authorization may involve some of the same techniques/practices.
  • Second, some cyber ops may implicate other Charter rights and Canadian law. At first blush, this may be rare (even very rare) because those rights and laws are usually confined to the territory of Canada. That said, the “real and substantial connection” test may make things like criminal mischief commenced here and remotely conducted against a foreign computer a crime with a sufficient nexus to Canada. But I am not sure that superimposing the IC into the approval process for such actions is an *obligation*.  We do allow our security services to break statute law in pursuing aspects of their mandate and we don’t always require pre-authorization by a judicial officer.  For example, Criminal Code, s.25.1 for the police allows law-breaking through administrative approvals within the police services.  On the other hand, CSIS threat reduction power does oblige judicial pre-authorization for breaches of Canadian law, which would presumably include overseas conduct that, on a real and substantial connection to Canada basis, violates Canadian law (or in some other manner where the Canadian law applies extraterritorially).  The CSE Commissioner, in his brief, points to this CSIS precedent to justify his view that cyber ops should be subjected to IC oversight. It is hard to argue against this parallel.
  • Third, international law may be breached by cyber ops.  (And indeed, international law is likely breached by CSIS extraterritorial threat reduction and perhaps intrusive surveillance done in violation of a foreign state’s laws, and thus its sovereignty.  That is a violation in the area of extraterritorial enforcement jurisdiction.  I have argued that this international law breach would require pre-authorization by the Federal Court, under the current CSIS Act. See here.) Invasive cyber conduct and international law is an issue I have discussed here, in the context of covert action.

This third argument is a strong justification for an IC involvement in cyber op authorizations.  But it depends on a final supposition: that either international law or domestic law or good policy is served by having an independent judicial officer scrutinize Canada’s international conduct and bless (or not) breaches of it. There are many, many areas where Canada’s international obligations are engaged where we do not involve pre-vetting by judges. The overseas conduct of the Canadian Armed Forces is an example.  When the Canadian Armed Forces chooses to bombard an enemy, say in Afghanistan, it is reviewed for legality under international law, most notably by the JAG team.  But they do not seek the blessing of a judge. Our system expects (and under the terms of the Baker decision of the Supreme Court, I would argue, obliges) members of the executive to observe Canada’s international obligations in exercising their discretion.  But we do not then submit that judgment to advance approval by a judge – indeed, it is near impossible to subject it to any form of judicial review, as many of these matters are considered non-justiciable (if they do not raise Charter issues, which as suggested above they rarely do).

CSE cyber ops are the sort of activity that would typically be considered an exercise of defence or foreign policy, and absent some statutory displacement, governed by the royal prerogative.  That is why the military could hack away and turn off lights and never need to meet a statutorily-prescribed approval regime.  But because CSE only has statutory powers (since 2001), it must look to its statute to find the power for cyber ops. Hence, C-59.  So the question is: because CSE is a statutory creature, should the once relatively unfettered powers to engage in defence and international affairs now implicate judicial pre-authorization?

This provokes additional questions: would we be best served by an IC looking at all cyber ops to establish the reasonableness of them?  If so, would the IC be empowered to assess the inevitable political dimension of the minister’s authorization – his or her judgment, for example, that the security risk posed by a malignant server justifies CSE reaching out and turning it off? Or would we craft language confining the role of the IC to indisputably legal issues? If so, would the IC be better equipped to assess Canada’s compliance with international law than the executive?  Which raises a question: then why stop with IC involvement in the cyber world? Should the artillery officer's orders also be pre-vetted by a Combat Commissioner for compliance with IHL (international humanitarian law)?

The bottom line: I am torn on this issue. I worry about giving the IC too global a role in areas of high policy where he or she would not be equipped to apply rules, but rather second guess political judgment.  For one thing: the IC then ends up wearing whatever they approve.  And if they dispute, without clear legal standards to ground that dispute, then we have a clash of responsibilities. Who should be responsible for these decisions of high policy: a minister accountable to Parliament or an appointed quasi-judicial officer?

On the other hand, if you agree that judicial pre-authorization is required for extraterritorial CSIS threat reduction (at minimum), what’s good for CSIS under threat reduction should probably also be good for CSE under cyber ops. I must say, in both cases, I wonder a lot about what a court (or the IC, if its remit is extended) would say in response to an op that violates, say, the sovereignty interest of a foreign state.  This is a whole lot of novel territory.  Which makes it interesting, but also worthy of close consideration.

I am probably missing much and wrong on other issue, but heck, it’s my blog.  This is probably one of this entries that will soon be supplemented with a lot of supplemental additions.

 

Wednesday
Jan312018

C-59 and collection of all that is in the eye of the beholder?

A number of really interesting briefs have been prepared by various stakeholders, going into the next round of House of Commons legislative hearings on bill C-59.  Many seek to ratchet tighter the accountability structures in the bill, especially for CSE and CSIS (where they don’t call for the outright abandonment of these agencies’ proposed new powers).

I haven’t had chance to review all the specific ideas, but two of these sets of recommendations stand out for me in this area.  Let me address the first in this post, and a second in one to follow.

Stakeholders have expressed a recurring concern about “publicly available” information.  Both CSE and (to a slightly lesser extent CSIS, in relation to datasets) are exempted from the special oversight accountability structures imposed on information collection, where the information is said to be “public”.  Indeed, in relation “publically available information”, CSE is relieved of its obligation not to direct its activities at Canadians. Neither the CSE nor the CSIS dataset rules include a truly meaningful definition of public information, raising concerns about the fuzzy line between public and not-so-public.  The phone book (does it still exist?) is one thing. Hacked information now spilled out on the web and technically publicly available "at the time of its collection" (the CSIS definition), is another. Should there be safeguards on its collection, retention and use by intelligence agencies?  The CSIS amendments provide rules on the retention, querying and exploitation of public information, yes, but exempt it from the more thorough independent vetting system for other sorts of datasets.

On the one hand, it would be naïve and prejudicial to ask intelligence agencies to turn a blind eye to any source of information within legal mandate and contributing to their mission.  On the other hand, it would be pernicious to create a nudge-nudge-wink-wink intelligence service market for unlawfully acquired information.  Or even, possibly, lawfully released information revealing personal information in unexpected ways.  Given the Supreme Court’s trajectory, it is possible it will ultimately conclude that a person retains a constitutional privacy interest in even public information (at least of a certain character). 

But even if Charter s.8 does not go this far, there may be policy reasons to treat the state’s acquisition of “public” information differently than similar private sector activities. For one thing, the private sector is not generally equipped with guns and jails and the coercive apparatus of the state.  Nor does it have access to the full panoply of information we are all compelled to provide to the state, in our interaction with its regulatory function (think tax info). So the state has unparalleled capacity to scrape public information and combine it with both closed intelligence and other state-acquired information.  That gives “public” information a qualitatively different significance in the hands of the state.  Predicting in advance what implications this has is impossible, which is an argument in favour of an independent oversight function even where “public” information is at issue.  (Back-end review seems insufficient, especially since review bodies have powers of recommendation, only. And in some instances in the past, issues raised by these bodies have taken years to redress. Independent pre-authorization, required to undertake the activity, is a more robust way to oblige careful consideration of the dilemmas, and if section 8 were ever engaged, is likely required anyway.)

All of this is to say that these concerns are worth redressing, at minimum by plugging even public information acquisition into the independent vetting systems anticipated for both CSIS datasets and CSE foreign intelligence and cybersecurity mandates.  I fear that otherwise, this issue will become a festering source of unease about the good faith of the security services, and perhaps a source of future controversy.