Privacy protections ‘implicit’ in C-59: CSE

OTTAWA — Representatives from the Communications Security Establishment (CSE), when asked Tuesday about critics calling for stronger language around privacy in Bill C-59, told MPs that protections found in the Charter of Rights and Freedoms already apply to the agency under the legislation. Bill C-59 is the federal government’s latest attempt to modernize the rules that apply to foreign intelligence collection by the Communications Security Establishment (CSE). The House of Commons public safety and national security committee has heard from critics of the bill who have expressed worries the wording of the bill is ambiguous when it comes to Canadians’ privacy rights, and have suggested the bill be more explicit about privacy protections. When pressed on the issue by MPs, officials from the CSE said that those concerns were already covered by the Charter of Rights and Freedoms. “We are subject to the charter,” said Scott Millar, executive director at the CSE, said in response to a question by Liberal MP Julie Dabrusin about adding terms to the bill proposed by University of Ottawa law professor Craig Forcese and the British Columbia Civil Liberties Association (BCCLA). Forcese has said he wants stronger privacy-protecting language to be included in the section that outlines when an authorization by the minister of national defence is required to collect information. Millar added that any information collected which would interfere with the expectation of privacy provided by the charter would be subject to a ministerial approval. Still, he noted that Forcese’s call for an explicit mention of Canadians’ expectation of privacy “is not inconsistent” with the existing implicit requirement to seek authorization when surveillance might contravene the Charter. Forcese told The Wire Report in an online message he wants to see a bill that ensures that the requirements for ministerial authorization don’t change over the long term, sets out clear jurisdiction of the authorization process, and includes stronger constitutional grounds. Privacy advocates at Citizen Lab pointed to similar issues in wording that centres on the use of “publicly available information.” The bill currently says that despite provisions of C-59 which state Canadians can’t be targeted by the CSE, the agency can collect and analyze publicly available information, which doesn’t explicitly exclude Canadian information. The privacy group released a report last December which pointed out the lack of clarity around to exactly what counts as publicly available information. As it stands, according to Citizen Lab, “no protections are imposed with respect to the ‘acquisition’ or ‘collection’ of such information — a green light for bulk surveillance,” the report reads. Shelly Bruce, associate chief of the CSE, told MPs that the agency would limit what qualifies as publicly available information to exclude stolen or hacked data available for purchase. When NDP MP Matthew Dubé asked the witnesses about the expectation of privacy in publicly available information, Millar told the committee “as the publicly available information is laid out , the idea is that it was public, it was intended to be public.” He again noted he expects the ministerial review system to catch when surveillance goes against the charter. “Any information we acquire under those provisions would have to meet those those kinds of tests, and those tests will be reviewed and commented on going forward,” Millar said. Citizen Lab research fellow Lex Gill told The Wire Report in an email that these promises don’t do much to assuage the group’s concerns about the bill. “If the government is serious about that commitment, then there’s no reason not to introduce an amendment to more clearly limit and clarify this power,” she wrote. She noted without changes to the bill the “debate about what kind of ‘publicly available information' does, and doesn’t, engage a reasonable expectation of privacy… is going to begin and end with the CSE.” This ambiguity has also inspired scrutiny of the CSE’s proposed new powers, which allow it to conduct offensive and defensive cybersecurity actions. Critics like Open Media’s executive director Laura Tribe have testified that plan opens Canada to risks. The CSE representatives said examples of how the agency might use the new powers include stopping terrorists from detonating remote bombs with cell phones, disrupting communications of the terrorist group ISIS, and halting ransomware. “Necessary, reasonable, proportionate are all factors they have to consider,” said Bruce, referring to when the minister of national defence approves any active cyber measures. The cyber actions can’t be options which can be achieved by other means and “cannot cause… bodily harm or death, but also cannot subvert or obstruct democracy or the course of justice,” she continued. When Dubé asked whether such action could qualify as an act of war, Millar pointed to limits that would be imposed on any actions. The proposed cyber actions are “not always in this stream of aggression and cyber war and that kind of thing,” said Millar, noting that “there are civilian uses to this,” such as corrupting stolen Canadian intellectual property on foreign servers. “And there are prohibitions built in to keep us within the swim lane of that,” he added. — With reporting by Bryson Masse at bmasse@thewirereport.ca and editing by Anja Karadeglija at akarad@thewirereport.ca

Privacy protections ‘implicit’ in C-59: CSE

News | February 14, 2018

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Privacy protections ‘implicit’ in C-59: CSE

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