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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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.