National Defence Committee on April 3rd, 2014

[John Forster]

The ones you're referring to are actually ministerial directives, so they were directives brought in to focus and provide additional direction to the agency about how it's going to collect and protect metadata. Metadata has been used by the agency and by second agencies for decades. In 2005, with the growth of the Internet, it was felt that a specific directive from the minister would help inform and direct the agency about how it was to use, what it could use metadata for, and how it was to protect the privacy of Canadians in doing that. Then that directive was updated again in 2011. So, it's not—

[Jack Harris, NDP, St. John's East, NL]

—it's not an authorization on section 273.61.

[John Forster]

Our ministerial authorizations are used for any collection activities where we might risk the incidental interception of a private communication. So, if I'm targeting a foreign target who's in communication with somebody in Canada—I'm not targeting the Canadian but in targeting a foreign target they may be having an email conversation with someone in Canada. The Minister authorizes any collection activities we have where we risk that incidental interception of a private communication as the act provides for.

[Jack Harris, NDP, St. John's East, NL]

So one is just under the minister's authority to issue directives and those are the 2005 and 2011...and authorizations are something separate for specific interception of private communication?

[John Forster]

Yes, for activities that risk that incidental interception of a communication, which is where you're talking about the actual content.... Metadata doesn't include the content of the conversation.

[Jack Harris, NDP, St. John's East, NL]

In order for us to know how the privacy of Canadians is protected, we would have to know the contents of the directive, would we not?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Again, these are completely reviewed by the CSE commissioner that any authorization is to ensure that CSE is in complete compliance with Canadian laws, including the protection of privacy.

That being said, all of the activity of CSEC is reviewed by the commissioner and as I pointed out, specifically with respect to metadata and other issues, the commissioner has indicated that the organizations are in complete compliance with Canadian law.

[Jack Harris, NDP, St. John's East, NL]

Sir, we all have the commission's report—

[Rob Nicholson, Conservative, Niagara Falls, ON]

Good.

[Jack Harris, NDP, St. John's East, NL]

—but you indicated in your opening remarks, and you're saying it again, about the protection of privacy. We do know, because the act says so that the whole section of the Criminal Code which refers to privacy of information:

273.69 Part VI of the Criminal Code does not apply in relation to an interception of a communication under the authority of an authorization issued under this Part or in relation to a communication so intercepted.

So the protection of privacy, the wiretap legislation under the Criminal Code, is totally excluded from this and it's totally dependent upon an authorization—

[Rob Nicholson, Conservative, Niagara Falls, ON]

But you then get judicial oversight as to whether the warrant will be issued or not.

[Jack Harris, NDP, St. John's East, NL]

Well, there's no judicial oversight, because the authorization is issued by you as minister, sir, and you're not acting in the capacity of a judge.

[Rob Nicholson, Conservative, Niagara Falls, ON]

With respect to that section of the Criminal Code, you talked about the interception and the...that applies to a wide range of the interceptions that are all under judicial oversight in terms of the applications that are made.

Now with respect to the ministerial directives and authorizations on this, again, it's to be in compliance with Canadian law and that is the basis upon which...there and that is reviewed again by the CSE commissioner.

[Jack Harris, NDP, St. John's East, NL]

The directives themselves, I don't think there's a suggestion here, although others have suggested it elsewhere that there may not be compliance with Canadian law.... What we're attempting to discover here is the level of detail that the CSE collects. For example, it's been also reported that because of obligations made by the CRTC, there has to be a capability to have access to information by companies such as Bell, Rogers, and Telus by government agencies such as CSEC.

Do you have, for example, Mr. Forster, direct access through electronic means from your headquarters to information on the Bell, Rogers, and Telus networks? Is that part of your operational activities?

[John Forster]

Well, as I mentioned, our target and our focus is foreign intelligence collection.

[Jack Harris, NDP, St. John's East, NL]

I know what you're targeting. I'm asking what access you have?

[John Forster]

We collect in areas around the global networks where we're going to be most successful in finding our foreign targets. I can't really disclose our methods and capabilities in that collection. Suffice it to say that where there's any risk of incidental instance of private communication, those are authorized by the minister; and then the commissioner reviews all of our collection activities and verifies that they're in compliance with Canadian law and that we have measures in place to protect the privacy of the Canadian—

[The Chair, Conservative, Peter Kent]

Thank you.

Mr. Williamson, please, for five minutes.

[John Williamson, Conservative, New Brunswick Southwest, NB]

Thank you, Chair.

I appreciate everyone coming in today.

I find it interesting how the evolution of this committee has gone on. We focus so much on privacy here at home, we've got other people here who project power and yet not a single question to them. I just think it's interesting the challenges the government has in order to protect Canada and the preoccupation, which I think Canadians rightly share and we've heard that CSE must follow the law which in itself I think is powerful. There's a judicial review.

I'd like to know if you can explain how Canadians can be assured that CSE is accountable to someone at the end of the day, not simply just a judge who will use decisions that the law is enforced and there is some oversight in place that we can have some confidence in.

[Rob Nicholson, Conservative, Niagara Falls, ON]

We all have a stake, of course, in ensuring that there is complete compliance with Canadian law. What CSE can do is very clear, and it's fairly restricted, quite frankly. As I pointed out in an answer to a previous question, if somebody, for example, wants a wiretap or wants to tap into somebody's conversation, they must go before a judge and make an application for that. It is not CSEC or National Defence; it is law enforcement agencies that do this. So you get this oversight, that the courts get an opportunity to have a look at it.

With respect to CSEC, it's very clear that they are not to target Canadians. They are not to intercept the private communications of Canadians, and we expect them to comply with the law. Indeed, it's a ministerial responsibility to direct it in that direction.

That being said, though, as I pointed out, we have had over the last 17-plus years an independent CSEC commissioner who has complete access to all the different activities, all the documents, and that sort of thing. The commissioner is a respected individual who is a former jurist or a supernumerary judge. Those individuals, on a regular basis, have a look, unless they're assisting the RCMP and CSIS under a warrant. There is complete judicial oversight for all these activities, but on their own there are certain prescriptions, unless it's pursuant to an authorization that the RCMP and law enforcement agencies have had.

Going back to your original question—what confidence do we have?—I have confidence in the fact that we have individuals who are looking at this kind of information. You may ask, could more be done? I can tell you that these are the individuals who are protecting us against terrorists and cyber-attackers. It's not information that is all publicly available all the time to everyone, because that's not how we can protect ourselves against these kinds of threats.

I've been satisfied with and confident in the continuation of the process that's in place, which is to have a former judge look at this. I think it has worked well.

[John Williamson, Conservative, New Brunswick Southwest, NB]

Very good. Thank you.

Let's take it down to the ground level. You recently visited CFB Gagetown in New Brunswick.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Yes.

[John Williamson, Conservative, New Brunswick Southwest, NB]

I have just a couple of comments.

I think it's important that you get out to meet the men and women in uniform. Can you talk about that a little bit?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I was amazed at how sophisticated the operation is that's there and how up to date the equipment is that they have available for our men and women in the armed forces, and particularly for those in the air force. It's a large operation, as you know. You're quite familiar with this, I'm sure.

I was very pleased and impressed, quite frankly, and told them that too. I said this is very impressive, the different equipment that you have. I think it works very well. It's something that maybe we don't spend a lot of time congratulating ourselves on. Whether through commemorations for our service in the war or otherwise, nobody has a better record than Canada of doing the right thing throughout the world. To see all the men and women at that base and all the work they are doing there was very impressive.

Thank you for asking me about that.

[The Chair, Conservative, Peter Kent]

Thank you.

Mr. Harris, I understand you'll be splitting your time.