Back to top

CAUT Bulletin Archives

April 2006

We Need Answers on Domestic Spying

Warren Allmand
Canadians making, sending and receiving phone calls, faxes and emails in and out of the country should pay close attention to recent media reports on a mass domestic spying program in the United States.

Pundits and politicians from all sides of the spectrum in the U.S. are outraged about revelations that President George Bush secretly authorized the National Security Agency to spy, without warrants, on emails, faxes and telephone calls going into and out of that country. The vast data-mining system being used by the NSA isn’t just monitoring a few suspected terrorists, but also filtering through the international, and possibly even domestic, communications of potentially all ordinary, law-abiding U.S. citizens.

This mass invasion of privacy is anathema in the U.S., where in the 1970s, warrantless wiretapping by law enforcement agencies and the president led to a complete overhaul of the legislative framework and Richard Nixon’s impeachment.

Not surprisingly, the recently revealed NSA wiretapping program is being strongly denounced and Bush’s authority to create it is being questioned. The uproar is being fuelled by admissions by the FBI, the agency which follows up on NSA “tips,” that the program isn’t effective at netting would-be terrorists.

What does this have to do with Canada?

The Canadian Security Establishment (CSE) — the functional equivalent of the NSA — has been authorized to do the same domestic spying here, and may already be using the same data-mining approach to conduct mass surveillance of Canadians’ international communications.

A rather obtuse section of Canada’s Anti-terrorism Act allows the minister of defence to authorize the CSE “to intercept private communications” initiated or terminated in a foreign country “in relation to an activity or class of activities specified in the authorization,” for the broad purpose of “obtaining foreign intelligence.”

While the CSE used to be restricted to spying on communications outside of Canada, the new act allows it to spy on domestic communication, as long as it involves someone outside of Canada.

This power to spy on our international communications has been handed to the CSE without any effective oversight or safeguards.

Instead of having to go to a court to obtain a warrant on the basis of probable cause, the CSE need only seek authorization from the defence minister. And while the minister does have to justify the spying, the act is open ended about which activities provide that justification. Even worse, the communications need only “relate” to the designated activity.

Canada’s program may be even more intrusive than its American counterpart, because, unlike the U.S. program, there is no pretense that “probable cause” is required or that the program is restricted to an “anti-terrorism” purpose. And it is unclear what restrictions there are on the type of information the CSE can pass on to law enforcement agencies.

As a consequence of these powers, the privacy and constitutional rights of many Canadians could be grossly violated. Furthermore, because the Charter deems intelligence gathering without a warrant illegal, prosecutions based on this intelligence could be jeopardized.

This is already happening in the U.S., where defendants in terrorism cases are challenging their prosecutions, alleging that information about them might have been illegally obtained through NSA’s warrantless surveillance program.

Parliamentary and Senate committees reviewing the Anti-terrorism Act in Canada held hearings and heard testimony before the true extent of the U.S. program was revealed. Given what we now know about the American program, those committees must go back to the table and demand more information about the CSE spying program.

The CSE’s provisions in the Anti-terrorism Act have opened the door to massive, domestic and international spying on ordinary citizens.

Canadians need to know how these powers are being used, on what scale, how often and at whose request. We need to know who is advising the defence minister on what to authorize. We need to ask why there is no effective oversight mechanism for this kind of activity in Canada and summon up a little outrage of our own.

Warren Allmand was Canada’s solicitor general from 1972 to 1976 and is a spokesperson for the International Civil Liberties Monitoring Group, a coalition that works to safeguard civil liberties in the context of anti-terrorism measures in Canada.

The views expressed are those of the author and not necessarily CAUT.