Technology, Thoughts & Trinkets

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Citizen Lab and CIPPIC Release Analysis of the Communications Security Establishment Act

The Fifth Eye by Dustin Ginetz (CC BY-NC-SA 2.0) https://flic.kr/p/id9KHn

It’s with real pleasure that I can announce that the Citizen Lab and the Canadian Internet Policy & Public Interest Clinic (CIPPIC) have collaborated to produce a report which provides timely legal analysis, political context, and historical background on the Communications Security Establishment Act and related provisions in Bill C-59 (An Act respecting national security matters), First Reading (December 18, 2017).  We hope that this resource will help members of parliament, journalists, researchers, lawyers, and civil society advocates engage more effectively on the issues at stake. Our report represents an analysis of the legislation as it enters political debate in Canada, and should be understood in the context of a rapidly evolving legal and political landscape.

The Communications Security Establishment (“the CSE” or “the Establishment”) is Canada’s national signals intelligence and cybersecurity agency. In the course of our analysis, we summarize the CSE’s mandate, activities, operations, and powers, with an emphasis on their potential implications for human rights and global security. We also offer a series of recommendations which, if adopted, would ensure a more legally sound framework for the CSE, better protect global security interests in a rapidly changing technological environment, and more effectively account for Canada’s domestic and international human rights obligations.

In Section I, we provide a brief overview of the CSE’s current mandate and certain controversial activities undertaken as part of that mandate. We also provide a high-level overview of Bill C-59 and its primary implications for the CSE.

In Section II, we undertake a detailed analysis of key issues arising from Bill C-59 related to the CSE, focusing on aspects with the most critical implications for human rights, political transparency, and global security. In particular, some of the issues we highlight in the legislation relate to:

  • Longstanding problems with the CSE’s foreign intelligence operations, which are predicated on ambiguous and secretive legal interpretations that legitimize bulk collection and mass surveillance activities. These activities both attract Charter protections and engage Canada’s human rights obligations.
  • The complete lack of meaningful oversight and control of the CSE’s activities under the proposed active and defensive cyber operations aspects of its mandate.
  • The absence of meaningful safeguards or restrictions on the CSE’s active and defensive cyber operations activities, which have the potential to seriously threaten secure communications tools, public safety, and global security.
  • The absence of meaningful safeguards or restrictions on the CSE’s activities more generally. As drafted, the CSE Act appears to include a loophole which would allow the Establishment to cause death or bodily harm, and to interfere with the “course of justice or democracy,” if acting under its foreign intelligence or cybersecurity powers while prohibiting these outcomes under its new cyber operation powers.
  • The risk that the CSE’s cybersecurity and assurance operations for the federal government could threaten independence of the courts or the separation of powers.
  • Concerns regarding the framework for the CSE’s acquisition of malware, spyware and hacking tools, which may legitimize a market predicated on undermining and subverting, rather than strengthening, the security of the global information infrastructure.
  • Serious issues related to the CSE’s provision of technical and operational assistance to other entities—including Canadian law enforcement—which may lead the CSE to proffer capabilities that would otherwise be illegal or unconstitutional for domestic partners to develop, use or possess, or which would be inherently disproportionate if deployed in those contexts (e.g., in policing operations).
  • Potential issues with the National Security Intelligence Review Agency’s ability to access foreign-provided information, and the risk of regulatory capture through its hiring policies.
  • Serious shortcomings—both legal and practical—in the role of the Intelligence Commissioner, which does not resolve the constitutional challenges surrounding the current CSE Commissioner or the constitutionality of the CSE’s activities more generally.
  • The Intelligence Commissioner’s inability to exercise meaningful and comprehensive oversight and control over the CSE’s activities (including its most problematic activities) due to an under-inclusive mandate, issues of independence, and insufficient powers of a quasi-judicial nature.
  • Weak and vague protections for the privacy of Canadians and persons in Canada, alongside an abject disregard for privacy rights as an international human rights norm.
  • Extraordinary exceptions to the CSE’s general rule against “directing” activities at Canadians and persons in Canada significantly expand the CSE’s ability to use its expansive powers domestically.
  • A general failure to recognize that the highly interconnected and interdependent nature of the global information infrastructure means that protections or limits on the CSE’s powers that begin and end at national boundaries are insufficient to protect Canada’s security interests.
  • Deep tensions at the core of the CSE mandate, which requires the Establishment to both protect and defend against security threats while simultaneously exploiting, maintaining, and creating new vulnerabilities in order to further its foreign intelligence agenda. These tensions are exacerbated by the introduction of new offensive powers and the two new aspects of its mandate.
  • A lack of legal clarity regarding how, when, and whether vulnerabilities discovered by the CSE are disclosed to vendors or the public, and how the CSE accounts for the public interest in the process.
  • The lack of oversight or reporting requirements for “arrangements” with equivalent agencies to the CSE in foreign jurisdictions. There is a risk that these partnerships could involve receipt of information derived from torture or other activities that would be unlawful or unconstitutional if conducted by a Canadian agency.

In Section III, we summarize recommendations emerging from our analysis for committee members and other members of Parliament studying the proposed CSE Act. In particular, we make recommendations to improve systems of review, oversight, and control of the CSE and to constrain the CSE’s ability to engage in activities that are problematic, abusive, unconstitutional, or in violation of international human rights norms.

Download a copy of “Analysis of the Communications Security Establishment Act and Related Provisions in Bill C-59 ( An Act respecting national security matters ), First Reading (December 18, 2017)

In Support of Chelsea Manning Entering Canada

‘Chelsea Manning’ by Tim Travers Hawkins (CC BY-SA 4.0) at https://goo.gl/mhhbdm

Earlier this month I composed and sent a letter in support of Chelsea Manning being permitted to enter Canada. Manning previously released classified military and diplomatic documents to Wikileaks. Those documents shed light on American activities in Iraq as well as diplomatic efforts around the world, to the effect of revealing US avoidance of cluster munition bans, US pressure on the Italian government to drop charged against CIA operatives who conducted extraordinary rendition activities, and the actual causality rates suffered by Iraqi citizens. She was disallowed entry last year when Canadian officials asserted that the crimes associated with her whistleblowing in the United States were akin to a violation of Canadian treason laws. The letter that I wrote in support of her entry to Canada is reproduced, below.


October 13, 2017

 

Hon. Ahmed Hussen
Minister of Immigration, Refugees and Citizenship

Hon. Ralph Goodale
Minister of Public Safety and Emergency Preparedness

RE:     Welcoming Chelsea Manning to Canada

 

Dear Minister Hussen and Minister Goodale:

I am writing as a Research Associate at the Citizen Lab, Munk School of Global Affairs, at the University of Toronto to ask you to allow Chelsea Manning to enter Canada. Refusing her entry to the country is a real loss for Canada and an injustice to whistleblowers who expose information in the public interest.

Chelsea is an internationally recognized advocate for freedom of expression, transparency, and civil liberties. As a whistleblower, she revealed documents that—among other things—exposed the disproportionate impact of military activities abroad on civilians, including journalists and children. Her work has been used by academics across Canada to understand the impacts American adventurism, the relationships between American diplomats and government officials with autocratic governments, and the status of copyright negotiations between US officials and their foreign counterparts. Documents that she provided to the public also shed light on critical issues such as the United States’ avoidance of cluster munitions bans, the United States’ pressure on the Italian government to drop charges against CIA operatives who engaged in renditions, American military executions of civilians, and Iraqi civilian death tolls. She has received a host of awards from prominent media and human rights organizations for this work.

Not all Canadians will agree with what Chelsea did or what she stands for—but as a country that values freedom of expression, open dialogue, and human rights we should permit her to visit and speak in Canada. She stands as a guiding light for persons to stand up and both do what they believe to be honorable and right, as well as be held to account for those beliefs and corresponding actions.

Whether Chelsea wishes to enter Canada to continue her work to advocate for social change or simply to visit friends, there is no principled reason to turn her away. She has served her time in a US military prison after accepting responsibility for her actions. Her sentence was commuted by former US President Barack Obama in January 2017 and she has been living freely in the United States since May 2017. Continuing to deny her entry to Canada would serve no rational benefit to public safety and would undermine Canada’s commitment to international justice and human rights.

Letting Chelsea enter Canada would affirm Canada’s values of dialogue, freedom of expression, and human rights. More than that, letting Chelsea in is simply the right thing to do.

I look forward to hearing news of your decision.

Regards,

Dr. Christopher Parsons
Research Associate, Citizen Lab, Munk School of
Global Affairs, at the University of Toronto

Update to the SIGINT Summaries

As part of my ongoing research into the Edward Snowden documents, I have found and added an additional document to the Canadian SIGINT Summaries. The Summaries include downloadable copies of leaked Communications Security Establishment (CSE) documents (and those pertaining to CSE activities), along with summary, publication, and original source information. CSE is Canada’s foreign signals intelligence agency and has operated since the Second World War.

Documents were often produced by CSE’s closest partners which, collectively, form the ‘Five Eyes’ intelligence network. This network includes the CSE, the National Security Agency (NSA), the Government Commsiunications Headquarters (GCHQ), Australian Signals Directorate (ASD), and Government Communications Security Bureau (GCSB).

All of the documents are available for download from this website. Though I am hosting the documents they were all first published by another party. The new documents and their summaries are listed below. The full list of documents and their summary information is available on the Canadian SIGINT Summaries page.

This document came to my attention as part of analysis of NSA-Japanese signals intelligence cooperation. The Canadian-centric aspect of the document concerns the number of High Frequency Direction Finding sites that were, as of 2005, operated by Canada.

CROSSHAIR — Foreign Partners Filling HF/DF Gaps for the US

Summary: This brief article identifies the number of second-party High Frequency Direction Finding (HF/DF) resources, along with contributing third-parties, which collectively compose the CROSSHAIR network with US government assets. The CROSSHAIR covername refers to a project that consolidated all US Service Cryptologic Element (SCE) HF/DF resources and enables data operability with partners.

Canada possessed four sites at time of writing, Great Britain six, and Australia and New Zealand one each. Third-parties, including Austria, Denmark, Ethiopia, Hungary, Israel, India, Italy, Japan, Jordan, Korea, Netherlands, Norway, Pakistan, Saudi Arabia, Sweden, and Taiwan, also shared with the NSA and, in some cases, directly with one another. The NSA recognizes, in this document, that without the third-party collaborators the NSA would lack a world-wide network for Direction Finding.

Document Published: April 24, 2017
Document Dated: February 25, 2005
Document Length: 1 pages
Associated Article: Japan Made Secret Deals With The NSA That Expanded Global Surveillance
Download Document: CROSSHAIR — Foreign Partners Filling HF/DF Gaps for the US
Classification: TOP SECRET//SI//TK//REL TO USA, AUS, CAN, GBR, NZL
Authoring Agency: NSA
Codenames: CROSSHAIR

Horizontal Accountability and Signals Intelligence: Lesson Drawing from Annual Electronic Surveillance Reports

‘Radome at Hartland Point’ by shirokazan (CC BY 2.0) at https://flic.kr/p/dfn9ei

Adam Molnar and I have a new paper on accountability and signals intelligence, which we will be presenting at the Security Intelligence & Surveillance in the Big Data Age workshop. The workshop will be held at the University of Ottawa later this month as part of the Big Data Surveillance partnership project that is funded by the Social Sciences and Humanities Research Council of Canada.

The paper focuses exclusively on the mechanisms which are needed for civil society actors to evaluate the propriety of actions undertaken by signals intelligence agencies. In it, we argue that Canada’s foreign signals intelligence agency’s public accountability reporting might be enhanced by drawing on lessons from existing statutory electronic surveillance reporting. Focusing exclusively on Canada’s signals intelligence agency, the Communications Security Establishment (CSE), we first outline the relationships between accountability of government agencies to their respective Ministers and Members of Parliament, the role of transparency in enabling governmental accountability to the public, and the link between robust accountability regimes and democratic legitimacy of government action. Next, we feature a contemporary bulk data surveillance practice undertaken by Canada’s signals intelligence agency and the deficiencies in how CSE’s existing review body makes the Establishment’s practices publicly accountable to Parliamentarians and the public alike. We then discuss how proposed changes to CSE oversight and review mechanisms will not clearly rectify the existing public accountability deficits. We conclude by proposing a principle-based framework towards a robust public accountability process that is linked to those underlying domestic and foreign statutory electronic surveillance reports.

A copy of our paper, titled, “Horizontal Accountability and Signals Intelligence: Lesson Drawing from Annual Electronic Surveillance Reports,” is available at the Social Sciences Research Network as well as for download from this website.

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