Spy agency can’t say how many Canadians were involved in illegal data program
CSIS says they briefed Conservative public safety ministers on the existence of the unlawful program — but not on storing the metadata of innocent Canadians.
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OTTAWA–The Canadian Security Intelligence Service says they don’t know how many Canadians were caught up in an illegal metadata program that operated for almost a decade.
In documents tabled in Parliament this week, CSIS told MPs they are “unable” to determine how many innocent people had their data stored and analyzed at the agency’s Operational Data Analysis Centre.
The ODAC stored “associated data” — usually called metadata — on individuals that posed no threat to Canada’s national security. In 2016, a Federal Court justice ruled the agency’s decision to keep that data indefinitely was unlawful.
Metadata can include highly sensitive information like geolocation data, phone calls made or received, and other personal information. Law enforcement and intelligence agencies have long relied on metadata to reveal a target’s movement and networks.
CSIS stated that because metadata isn’t tied to “personal details,” they can’t say how many Canadians were affected.
“Associated data does not reveal the purpose of the communication, nor any part of the content, and does not identify personal details, such as citizenship,” the agency wrote.
“As such, CSIS is unable to quantify the number of individuals linked to the associated data.”
The agency revealed they had informed successive public safety ministers about the existence of the ODAC on eight separate occasions, beginning in 2006 when the program was established.
But the agency did not make the distinction between “threat-related and non-threat-related” data to the ministers, relying instead on a Department of Justice legal interpretation to continue storing data on innocent people.
“Prior to the Federal Court decision being issued (in 2016), (CSIS) did not specifically inform the minister of public safety that it was retaining non-threat-related associated data linked to third parties,” the agency wrote.
“Though the distinction between threat-related and non-threat-related was not made, CSIS did, on numerous occasions, make ministers aware of the beneficial use and analysis of metadata.”
When asked if he recalled the specifics of the briefings, former public safety minister Stockwell Day said he received thousands of briefings between 2006 and 2008.
But in an interview Thursday, Day said that the “retention of data, the collection of data, was always done within the guidelines of the CSIS Act.”
In October 2016, Justice Simon Noël ruled CSIS had illegally retained an unknown amount of data on “non-threat” individuals.
The data was obtained through lawful methods, and the initial spying wasn’t illegal. CSIS obtained a warrant and intercepted the communications of their targets, all with the approval of Federal Court judges.
But in the process, CSIS collected information about the people their targets communicated with — innocent people, like family members or employers, who posed no threat to Canada. Both “threat and non-threat” data was stored and analyzed at the ODAC indefinitely.
Noël ruled that while the collection was lawful, it was illegal to retain it indefinitely. Moreover, the justice had some harsh words for the agency, who kept the specifics about the program from the courts.
“(Judges) serve as the gatekeepers of intrusive powers, ensuring a balance between private interest and the state’s need to intrude upon that privacy for the collective good,” Noël wrote.
“If the CSIS unduly limits the flow of information the court needs to make proper determinations, then the CSIS can be seen as manipulating the judicial decision-making process.”
In a November press conference, CSIS Director Michel Coulombe said the agency had no records to justify keeping the ODAC’s operations from the Federal Court.
“I’ll be honest, we went through our records and we really can’t find a good explanation of why the court was not informed,” Coulombe told reporters.
CSIS agreed to halt all access to and analysis of the ODAC’s databases after the ruling. But Coulombe stressed how effective the program was, and expressed a desire to keep it up and running.
CSIS was not immediately available to comment on the matter Thursday morning.