A Federal Court judge says Canada’s spy agency illegally kept potentially revealing electronic data about people over a 10-year period.
In a hard-hitting ruling made public Thursday, Justice Simon Noel said the Canadian Security Intelligence Service breached its duty to inform the court of its data-collection program, since the information was gathered using judicial warrants.
CSIS should not have retained the information since it was not directly related to threats to the security of Canada, the ruling said.
“Ultimately, the rule of law must prevail,” Noel wrote, adding, “without it, the actions of people and institutions cannot be trusted to accurately reflect the purpose they were entrusted to fulfil.”
At a press conference in Ottawa Thursday afternoon, CSIS Director Michel Coulombe said the agency accepted the court’s decision and has “taken immediate actions to respond.”
“I deeply regret the court’s serious concerns with respects to meeting our duty of candour, and I commit to continuing my efforts with the deputy minister of justice to address this concern,” Coulombe said.
“All associated data collected under warrants was done legally,” he said. “The court’s key concerns relates to our retention of non-threat-related associated data linked with third-party communication after it was collected.”
“CSIS, in consultation with the Department of Justice, interpreted the CSIS Act to allow for the retention of this subset of associated data. It is now clear that the Federal Court disagrees with this interpretation.”
Coulombe said CSIS has halted all access to, and analysis of, the data in order to assess the “operational” impact of the ruling and to determine the way forward.
“We are working closely with the Department of Justice to make sure that we meet our obligations with the court,” he added. “The trust of Canadians is essential in the fulfillment of our mandate.”
Asked how Canadians can be reassured that CSIS is not still retaining metadata about people that it is not authorized to keep, Robert Frater, chief general counsel for Justice Canada, told reporters the agency now understands its limits.
“We’ve heard the court loud and clear,” said Frater, who attended the press conference with Coulombe. “We are taking steps to improve our practices and we will meet that standard.”
Data retention and analysis
CSIS crunched the data beginning in 2006 using a powerful program known as the Operational Data Analysis Centre to produce intelligence that can reveal specific, intimate details about people the spy service investigates, the judge writes.
The improperly retained material was metadata — information associated with a communication, such as a telephone number or email address, but not the message itself.
However, it is difficult to determine the precise nature of the metadata involved due to heavy redactions to the 126-page court ruling.
The ruling said the CSIS data analysis grew out of the spy service’s concerns in the early 2000s that the information it collected was not fully utilized and should be processed using modern techniques.
That should not mean an expansion of the CSIS mandate approved by Parliament, Noel wrote.
“The evolution of technology is no excuse to flout or stretch legal parameters. When the information collected does not fall within the legal parameters delimiting the agency’s functions and actions, it cannot legally be retained.”
In the decision, Noel said he considered ordering the destruction of the associated data collected since 2006, but decided against it because, in part, he did not hear legal arguments on the question.
He suggested it may be time to revisit the CSIS Act of 1984, which is “showing its age” in a technologically advanced world.
“Canada can only gain from weighing such important issues once again,” Noel wrote. “Canadian intelligence agencies should be provided the proper tools for their operations but the public must be knowledgeable of some of their ways of operating.”
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