Building Haystacks: Information Retention and Data Exploitation by the Canadian Security Intelligence Service

Abstract

This article examines the technical topic of CSIS’s modern data acquisition, retention, and exploitation, a matter not canvassed in the existing legal literature. As part of a special collection on the National Security Act (NSA 2017), it focuses on the policy and legal context driving the NSA 2017 amendments, relying on primary materials to memorialize this background. This article examines how CSIS has been pulled in divergent directions by its governing law, and sometimes a strained construal of those legal standards, toward controversial information retention practices. It argues that the tempered standards on acquisition, retention, and exploitation of non-threat-related information created by the NSA 2017 respond to civil liberties objections. The introduction of the “dataset” regime in the NSA 2017 may finally establish an equilibrium between too aggressive an information destruction standard that imperils due process and too constraining an information retention system that undermines CSIS’s legitimate intelligence functions. The article flags, however, areas of doubt, the resolution of which will have important implications for the constitutionality and legitimacy of the new system.