Privacy and our spy agencies

Spies act in the shadows for obvious reasons: does this mean they are constrained by privacy issues?

This contribution was published in The Hill Times on June 01

OTTAWA, CANADA — Why do we have intelligence agencies? Have you ever asked yourself that? Aside from, d’uh, giving rise to the really cool James Bond films (are you a Sean Connery or a Daniel Craig fan?).

Intelligence has been called the world’s second oldest profession, although some say prostitution is (so what is the oldest?). Want evidence? Here is an excerpt from the Old Testament’s Book of Joshua:

Joshua son of Nun sent two spies out from Shittim secretly with orders to reconnoitre the country. The two men came to Jericho and went to the house of a prostitute named Rahab… (combining BOTH second oldest professions!)

The agencies which work in this world do so secretly for reasons I would hope we understand, if not totally accept. They gather information from human sources, some of whom are placed in very dangerous situations such as the requirement they infiltrate terrorist cells. Outing these brave people could get them killed. They also intercept communications, either domestically under a court-granted warrant – what we at CSIS call a “Section 21 warrant” and the RCMP calls a “Part VI” warrant – or without (what CSE does, provided the information it collects does not belong to Canadians). Disclosing how we collect data leads to data sources drying up: trust me I saw this happen while at CSE. In sum, all this cannot be done openly, hence the insistence that ‘sources and methods’ remain secret/classified.

What should we make then of proposed changes to Canada’s privacy laws that, in the view of CSIS, would make their work much harder to do, thus hampering their mandate? The Service is particularly concerned that these amendments would require it to disclose the identity of foreign agencies with whom it shares information or the nature of the data exchanges. This would result in an aversion by those agencies to share with Canada.

Not surprisingly, privacy advocates are all in favour of these changes. I have always found that such people, whom I think are all most probably fine Canadians, have a poor to non-existent understanding of intelligence in Canada, fear the worst, and want to put increasingly stringent requirements on what CSIS (and CSE) can and cannot do (with an emphasis on cannot).

CSIS director David Vigneault, pictured May 13, 2019, at the House Public Safety and National Security Committee meeting on the Hill.

Privacy in the online world

I would imagine we all agree that privacy is important although in the online world it is a valid question as to whether most Canadians care what they put out there and where it ends up, at least based on what I have seen posted. We can, and should, have laws in place to protect our privacy, but we must also allow CSIS to carry out its legislated mandate.

We in Canada are also blessed with oversight bodies (the National Security Intelligence Review Agency – NSIRA) to which all Canadians can apply when they feel CSIS has overstepped its bounds. Many countries do not submit their spies to such review. We used to joke at CSIS that the CSIS Act devoted more space to restrictions on our actions than what we were actually being asked to do!

Spies act in the shadows for obvious reasons: does this mean they are constrained by privacy issues? We can, and should, have laws in place to protect our privacy, but we must also allow CSIS to carry out its legislated mandate.

At the same time CSIS has a job to do and it cannot fulfill its functions if it is constantly challenged on issues that, to my mind at least, neither constitute egregious violations of its mandate nor warrant change. Spies do what spies do after all. No one at CSIS wantonly violates a Canadian’s privacy without due cause.

Sometimes I wonder if privacy advocates are in tune with what Canadians want. I guess we could find out if we did a poll, although from what I read representative polling is taking a hit these days vis-a-vis accuracy. It would also help if CSIS – and to a lesser extent CSE – were a little more open with what keeps them awake at night and what they do. Both agencies are getting a little better – a few weeks ago they issued a joint statement warning that Canadian intellectual property linked to the pandemic is a “valuable target” for state-sponsored actors. More, please!

Bundespräsident besucht Bundesnachrichtendienst (picture-alliance/dpa/W. Kumm)
Listening is verboten!

Then we have the truly bizarre court rulings.

On May 19 Germany’s Constitutional Court ruled that monitoring the internet traffic of foreign nationals abroad by the BND intelligence agency partly breaches the constitution. The ruling said that non-Germans were also protected by Germany’s constitutional rights.

What??? Non-Germans are afforded the same rights as Germans in Germany? Who thinks that way (the German court obviously)? This sort of decision would be the death knell of any spy service. If something analogous were to happen in Canada you might as well put up a ‘For Sale’ sign at CSE.

As a democracy we can debate what we want our intelligence services to do. We can put restrictions on what they collect and with whom they share it. We cannot, however, constrain their essential raison d’etre unless we want to shut them down. The latter may appeal to some but it would be to Canada’s detriment on many, many levels.

Phil Gurski

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