Thursday, November 28, 2013

Stranger than Fiction: The Canadian Security State

The G20 strikes again.

So many issues arising from that summit.  The immense cost combining absurd ostentation (fake lake) with the very poor optics of giving massive tax-funded infrastructure improvements to battleground ridings, the arguably unconstitutional Provincial legislation, the inappropriate police conduct...

...there's no doubt that the litigation from the G8/G20 summit will continue for years to come.

I would never argue that we shouldn't host international summits, but if we're going to do it, we have to do it right.

The most recent scandal, however, could be a very dark one.  CBC reported yesterday on documents leaked by Snowden which speak to NSA operations during the G20 summit, apparently in concert with "the Canadian partner".

The consensus appears to be that the "Canadian partner" refers to the Communications Security Establishment Canada, or "CSEC", Canada's own equivalent to the NSA.  The specifics of the operations embarked upon are still a bit vague, but given what we know of those organizations, the reasonable inference is that we're talking about communications interception.

What Do We Know?

The reality is that we don't know much.  From CBC's reporting, we know that the NSA's plans were "closely co-ordinated with the Canadian partner".  CBC describes the briefing notes as making it clear that CSEC's cooperation "would be absolutely vital to ensuring access to the telecommunications systems that would have been used by espionage targets during the summits."  Further, while the NSA noted that there was no specific credible threat of any known terrorist organizations targeting the event, one of the objectives of the operation is identified as supporting "U.S. policy goals".

So What?

Well, there are a few problems with electronic eavesdropping in Canada.  Namely, without specific legal authorization, such as a warrant or the consent of the intended recipient of the communications, it's a violation of the Criminal Code of Canada.

Without a warrant, therefore, it is generally illegal for CSEC to hack the phones or computers of people in Canada.  But we're talking about the NSA conducting the operation, with CSEC what does that mean?

CBC quotes law professor Craig Forcese as saying this:
If CSEC tasked NSA to conduct spying activities on Canadians within Canada that CSEC itself was not authorized to take, then I am comfortable saying that would be an unlawful undertaking by CSEC.
This is a very fair and accurate statement.  Note the "if", of course - he was very careful about that.

Professor Forcese has published his own article on the topic, here, explaining that this is a five second excerpt from a 20-minute conversation, and highlighting that he isn't assuming that there was any violation of Canadian law, because we don't yet know enough to reach that conclusion.  Fair and cautious, but he does rank certain probabilities in ways that I question.  And I might question one very narrow legal proposition he advances.

I encourage you to read his article, but I'll briefly sum up his position.  Basically, he thinks there are three possibilities:

(1) The NSA unilaterally conducted its own activities outside of Canada in support of security at the summit, or intercepting the "non-Canadian" side of conversations between people in Canada and third party states, and shared this information with CSEC.  Professor Forcese feels that this is the most probable scenario, and also uncontroversial, raising no concerns in respect of Canadian law.  "[I]f Canada neither sought nor requested intercept of communications that had a Canadian nexus or link, I don't see how the information sharing itself is legally doubtful."

I have some concerns about his analysis, but I will touch on them below.

(2) The NSA conducted its activities within Canada.  Without Canadian consent, this would be a violation of Canadian sovereignty.  With Canadian consent, this raises some complex legal issues - Professor Forcese has an excellent analysis of the point, which I won't reproduce here, but the bottom line is that without a judicial warrant, such activities would almost certainly be unlawful, and...
I have a lot of difficulty imagining CSIS coming to Federal Court and persuading a judge to authorize spying done by or in part by a foreign intelligence service operating in Canada and targeting foreign leaders at an international conference, in order to gather information on, say, negotiating positions so that NSA can support US policy objectives.  That is a whole lot of bridges to cross.
I agree wholeheartedly with this analysis.  I would add that the odds of a judge authorizing interception of communications of other delegations - which seems to be implied by the reporting - are close to nil:  Intercepting diplomatic communications is a big no-no.

However, Professor Forcese describes this scenario altogether as "improbable".

(3) The third possibility is a hybrid, that there was some out-of-country surveillance coordinated with narrow judicially-authorized surveillance within Canada.

My Analysis

I haven't seen the documents myself.  It appears the Professor Forcese may have, so it puts me at a disadvantage.  I'm left to draw inferences based on Professor Forcese's and CBC's description of the contents of the documents, and these descriptions do not appear to be consistent in all ways.  But I have to question the probability of some of the assumptions Professor Forcese built into scenario 1, and some of his conclusions.

I agree with Professor Forcese on the possibilities, because our knowledge is incomplete and highly imperfect.  I'm looking at third party reporting (which is often imperfect) of the language and implications of briefing notes (which might not be 100% accurate on their face either).  But to the extent that a theory appears to be inconsistent with what we think we know about the briefing notes, I think it's a stretch to call the theory 'probable'.

Firstly, it isn't clear how one could reconcile the CBC's assertion that CSEC's assistance was "absolutely vital" to the NSA operation with the proposition that all the intelligence gathering was outside of Canada.  Yes, CSEC has some impressive capabilities, but I hardly think that the NSA would be at CSEC's mercy when trying to hack the telecommunications infrastructure of countries outside of Canada.  Secondly, the characterization of CSEC's cooperation appears to be completely inconsistent with Professor Forcese's supposition that they passively received information from NSA.  Thirdly, it is not at all clear to me why one might think it probable that interception would be limited to the "non-Canadian side" of a conversation, nor that this would make it 'okay'.

If I, in Canada, have a conversation with somebody in Portugal, and the NSA has tapped the line in Portugal, it is inconceivable that they might only listen to the Portuguese side of the conversation.  Even with emails or text messages, it's pretty hard to imagine that they're looking at one person's side of the conversation but not the other.  If you put it into a context that makes sense, in a "News of the World" kind of way, that they're hacking one person's voicemail in a game of phone tag, then hacking the Portuguese end would mean that they're listening to my side of the conversation.

But while Professor Forcese is completely correct to say that we can't control what the NSA does in other countries, that doesn't mean it wouldn't raise issues in terms of Canadian domestic law (such that CSEC involvement would be very deeply problematic).  The Criminal Code provisions dealing with interception of private communications deal with any communications originating in Canada or intended to be received by a person in Canada.  International law regarding jurisdiction can be a little blurry, but Canada has taken a particularly expansive view of the authority to prosecute for an offence.  (The law school example is that a person in Canada calls a person in the United States and cons them into sending money to a recipient in Mexico.  Under the Canadian viewpoint, any one of the three countries would be entitled to prosecute the offender.)  Accordingly, if somebody bugs the line of my Portuguese friend and eavesdrops on our conversation, this would violate Canadian criminal law, opening up the eavesdropper to the prospect of prosecution in Canada, even if they've never set foot here.

(If we're talking about legally-authorized interceptions in the place in which the interception takes place...that might get more complex.  But when we're talking about NSA operations overseas, that's less likely to be the case.)

My Conclusion

It's difficult to reconcile CBC's reporting of the documents with scenarios 1 or 3.  CBC could be wrong - wouldn't be the first time the MSM has gotten the details materially wrong - but scenario 2, disturbing though it is, doesn't seem so unlikely to me.

We know that, especially since 9/11, the U.S. has basically taken the approach that national security trumps all other concerns, including foreign sovereignty.  As Professor Forcese himself has noted before, and as many other commentators have argued in respect of the various revelations resulting from Snowden's leaks, peacetime spying is not at all uncommon, especially in context of summits.  Everyone does it, and everyone knows that everyone does it, despite the fact that it's ostensibly controversial and raises potential legal issues.

Canada still has a good relationship with the U.S., including sharing a great deal of intelligence information.  It would be fairly shocking if the NSA were spying here without Canadian consent, not so much because of the sovereignty concerns as because of the close military and intelligence ties that spying could alienate.

So yes, the NSA was always going to spy on the G20, and they were going to get Canadian cooperation to do so.  Partly because, if CSEC said no, the NSA would probably do it anyways.  It's very much illegal, and highly disturbing, but it isn't at all surprising.

And if that's what actually happened, then - politics and diplomacy aside - rule of law demands prosecution of those Canadians who were party to any NSA espionage activities targeted at persons within Canada.

There are limits to what can be permitted in the name of national security.  Warrantless communications interception within Canada, if that's what happened, is well beyond those limits.

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