Foreign Intelligence in an Inter-Networked World: Time for a Re-Evaluation

Abstract

This paper explores the legal and operational framework under which Canada's foreign signals intelligence agency, the Communications Security Establishment (CSE) operates, with particular attention to CSE's role within the Five Eyes collective intelligence partnership. CSE is granted broad lee-way to conduct virtually unchecked electronic surveillance. It effectively interprets its own legal framework, its activities are deeply secretive subject to minimal oversight and control, its primary restriction is that it must limit its activities to the pursuit of loosely-defined 'foreign intelligence', and its primary control is a set of broadly framed directives issued by the same government Minister who most benefits from CSE's intelligence-gathering. CSE is granted such latitude on the basis that it must not direct its electronic surveillance activities towards Canadians. However, the highly integrated nature of our global communications renders this restriction effectively meaningless. Mass amounts of digital Canadian activities are incidentally captured on a regular basis in CSE's efforts to capture the entire global communications network of which they are a narrow subset. CSE's technical and practical integration into the Five Eyes intelligence alliance exacerbates this reality, by giving the agency access to additional and substantial digital resources holding significant amounts of Canadian private data. Given this significant and persistent incursion on the privacy of Canadians, the paper argues it is no longer reasonable for CSE to operate under a framework that is justified - politically and constitutionally - on the basis of its inherently foreign orientation. Finally, the paper argues that it is no longer reasonable to wholly ignore the privacy of non-Canadians. The Internet has made the world smaller, with political, social and other discourses occurring across national boundaries. Moreover, whereas the object of foreign surveillance was once largely limited in its scope to the activities of foreign governments and their agents, modern foreign intelligence agencies such as CSE focus on any and all foreigners. These agencies are now able to impact on activities far removed from any national security consideration. To chill journalism on a global level. To disrupt important democratic advocacy on various domestic issues with increasingly international dimension. To impact the reputations and religious preferences of individuals anywhere. As such, the paper argues that even if CSE were more successful in limiting its surveillance activities from impacting on Canadians, it should not be granted carte blanche to invade the privacy of foreigners without restriction.