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Privacy Plan

Recommendation 3: Embrace Accountability

RECOMMENDATION 3: EMBRACE ACCOUNTABILITY

Internet Voice: “It is clear that we need some kind of watchdog, with a bite, to protect law-abiding citizens’ privacy.” - Roxane T.

Canadians strongly support proposals to improve the oversight and accountability of Canadian intelligence agencies CSE and CSIS.

The findings from our crowdsourcing process make clear that Canadians dislike excessive secrecy around government surveillance activities. More transparency around government collection of private data came third overall in Canadians’ list of privacy priorities. 81.8% want to require spy agencies to publicly disclose how many times they intercept the personal communications of Canadians.

Internet Voice: “It's simple. Clear and transparent oversight. If people know their decisions will be scrutinized and that unauthorized or frivolous use of the power to invade citizens privacy will be punished then it won’t be abused.” - Kelly M.

Participants also expressed strong support for a range of proposals aimed at improving the accountability, oversight, and transparency of surveillance activities:

  • 94.1% want to empower a Parliamentary Committee to conduct a thorough overview of existing oversight mechanisms.
  • 91.8% want CSE to produce regular unclassified reports detailing their ongoing activities, and to publish statistics on how often they intercept Canadians’ personal information on behalf of partners such as the U.S. NSA.
  • 88.2% agree with the Privacy Commissioner that spy chiefs should testify regularly before Parliamentary committees.
  • 87.9% want an independent body to oversee CSE and CSIS and issue regular reports to the public.
  • 86.8% want to make the commissioner responsible for making sure CSE doesn’t break the law independent of the Department of National Defence.
  • 63.9% want a cross-party committee of MPs to provide stronger parliamentary overview of spy agency activities
  • 62.2% want to create an Interception Commissioner to review how spy agencies acquire and disclose communications data.

Unsurprisingly, these findings are again echoed by independent surveys. According to the federal Privacy Commissioner, 89% of those who were aware of surveillance activities believed that these agencies should have to “explain their activities to Canadians”.141 When Angus-Reid polled Canadians shortly after the publication of Bill C-51, they found that 69% wanted additional oversight of law enforcement agencies.142

There are a number of glaring weaknesses in Canada’s current oversight system. As we outline below, even where review bodies exist, they lack the resources and independence necessary to effectively hold intelligence agencies accountable to the taxpayers who fund them.

Internet Voice: “If we spied on the government, imagine the crimes we'd prevent!” - Steve F.

 

No effective independent oversight of CSE

 

Many experts have raised concerns about the near-total lack of effective independent oversight of spy agency activities. CSE, for example, is overseen by CSE Commissioner Jean-Pierre Plouffe. He has a staff of 8 and an annual budget of just over $2 million.143 Despite this lack of resources, he is expected to keep tabs on a rapidly growing agency with over 2000 employees and an annual budget of $829 million.144

Commissioner Plouffe is also limited in his effectiveness by the fact that he is only able to issue non-binding recommendations, which are often ignored on critical issues. This leaves CSE and the Minister of National Defence (who gives CSE its marching orders) as judge and jury when interpreting the scope of their legal powers.

The inadequacies of the legislation governing CSE oversight have also been raised by former CSE Commissioners Justice Robert Decary and Justice Charles Gonthier, who both complained they had inadequate information to be able to determine whether or not CSE had broken the law.145

Watchdog Budget.png

Internet Voice: “Don't just create the legal framework for bodies doing oversight.  They must be given adequate funding.” - Heather I.

 

Worsening CSIS accountability and oversight deficit

 

As is the case with CSE, CSIS also suffers from a severe accountability and oversight deficit. The Security and Intelligence Review Committee (SIRC) is responsible for reviewing CSIS activities and for investigating complaints against the agency. It complained in its 2014 annual report to Parliament that it was encountering “significant delays” in obtaining information from CSIS.146 It now takes SIRC an average of three years to investigate complaints against the agency.147

In the same report, SIRC complained that it had been “seriously misled” by CSIS.148 The watchdog also reported that it was “struggling to operate efficiently”, particularly in terms of investigating complaints.149 This is perhaps not surprising given that the government has starved SIRC of staff and resources,150 while at the same time consistently expanding funding for CSIS.

The government has also neglected to fill vacancies on the five member committee, leaving it to operate for much of 2014 with just three members, only one of whom could hear cases in French.151 Bill C-51 does nothing to address these accountability and oversight challenges.

Despite this, the government proposes under Bill C-51 to give sweeping new powers to CSIS without any additional oversight. As discussed earlier, The Globe and Mail has editorialized that these powers amount to transforming CSIS from an intelligence agency into “secret police”.152 As our case study on Bill C-51 demonstrated, many of these proposed new powers have significant negative implications for Canadians’ privacy - for example, under Bill C-51, it will be far easier for CSIS to obtain Canadians’ personal information, including what they write on passport applications, and even including sensitive commercial data.

Internet Voice: “I am really disturbed by the government's lack of transparency and accountability.  We need independent, non-partisan oversight of all surveillance activities.  And for there to be full public disclosure thereof; and further sharp penalties for intruding on the privacy of citizens without a warrant… I do not want to live in a police state.  That is not what it means to be Canadian and I would like our government to remember that.” - Patricia M.

 

Steps to Implementation:

 

 

The trend in recent years has been clear. The powers and capabilities of Canada’s intelligence agencies have rapidly expanded, with no commensurate increase in oversight, accountability, or review mechanisms. Both of the official bodies charged with overseeing CSIS and CSE have complained about being misled.

Canadians want to see effective, rigorous, and independent oversight of CSE and CSIS. As requested by 94.1% of crowdsourcing participants, an all-party Parliamentary Committee should be empowered to conduct a thorough overview of Canada’s existing oversight mechanisms, and to make recommendations for improvements. There are many measures that should be taken to address the current stark oversight deficit:

 

1. Reinstate the Office of the CSIS Inspector General:

In 2012, the government shut down the Office of the CSIS Inspector General. While SIRC reviews CSIS activities after the fact, the CSIS Inspector General was tasked with providing near real-time oversight of CSIS activities. The closure of this office has left a glaring hole in Canada’s oversight mechanisms, and this mistake should be rectified immediately. A new Office of the CSIS Inspector General should be made independent of the Department of Public Safety, and mandated to report directly to Parliament and the public without pre-approval or interference from the government of the day.

 

2. Create strong, independent control of the CSE:

The only current checks on CSE’s activities come in the form of non-binding recommendations from the CSE Commissioner and the Privacy Commissioner. CSE is allowed to ignore these recommendations and has in the past. CSE needs to be brought under judicial control, the CE and Privacy Commissioners must be empowered to issue binding orders onto CSE as well as penalties for when CSE ignores the law, and these bodies need to  receive the resources required to fulfil this mandate effectively. Moreover, both Commissioners should be appointed by a non-partisan parliamentary committee with input from civil society.

It should also be mandated to publish regular public reports on the privacy implications of CSE’s activities. As is the case with other arms-length agencies such as the Privacy Commissioner and the Canadian Radio-television and Telecommunications Commission, these reports should not be subject to pre-approval or interference from the government of the day.

 

3. Implement the CSE oversight recommendations proposed in Bill C-622:

Liberal MP Joyce Murray’s Bill C-622 was voted down by the government, but contained a range of important recommendations to boost transparency, oversight, and accountability for CSE. The Bill would give MPs stronger powers of oversight and review over CSE’s activities. It would also improve CSE’s public reporting obligations, and require the Minister responsible for CSE to obtain a Federal Court order to collect the protected information, including metadata, of Canadians at home or abroad. These sensible suggestions should be implemented in future pro-privacy legislation.

 

4. Establish a cross-party Parliamentary Committee tasked with ongoing review of spy agency activities:

A cross-party Parliamentary Intelligence and Security Committee should be empowered to provide rigorous parliamentary review of CSE, CSIS, and other government security agencies. Prior to their retirement, Senators Hugh Segal and Romeo Dallaire co-sponsored Bill S-220, which would establish just such a committee, while ensuring its members had the security clearances necessary to adequately review secretive surveillance activities.153 Liberal MP Wayne Easter has proposed something similar in his Private Member’s Bill C-551.154

“When you talk about a credible oversight body, I would suggest … that a parliamentary body is going to have more credibility because of its independence and because of the fact that there is also parliamentary accountability that will be brought to bear.”155

- Peter MacKay, when he was in opposition in 2005

At present, Canada is the only Five Eyes member without any parliamentary oversight of its security services.156 This deficiency should be rectified, and Bill S-220, while not without its flaws, provides a useful starting point from which to do so. The committee must be granted the resources required to conduct its oversight role effectively. To reflect the importance of ensuring the committee’s independence, it should be chaired by a member of the largest opposition party, and members should be elected through secret ballot of all MPs rather than chosen by party hierarchies.

Internet Voice: “The oversight committee should be made up of a body of 9 with 3 appointed by each of the 3 major parties. If not 9 then some equal number from each of the 3 main parties.” - Grant P.

5. Fully implement the Privacy Commissioner’s January 2014 ‘Checks and Controls’ recommendations:

The recommendations set out in the Privacy Commissioner’s January 2014 Checks and Controls report should be implemented in full. This would require strengthening existing reporting mechanisms, require CSE and CSIS chiefs to testify regularly before Parliament, require CSE to produce regular unclassified reports, strengthen existing laws to curb over-collection of personal information, and prevent government agencies from monitoring what people say on sites like Facebook without a legitimate reason. Each of these measures were broadly supported by over 84% of participants in our crowdsourcing process. While not sufficient in and of themselves to ensure sufficient oversight of CSE and CSIS, their implementation would be a positive step forward.

 

6. Ensure that the Security Intelligence Review Committee can perform its role effectively:

SIRC is mandated with investigating public complaints against CSIS, but due to lack of resources and personnel it is struggling to complete even 50% of investigations within a 3-year target timeframe. Vacancies on SIRC should be filled as a priority. SIRC should be provided with the human and financial resources required to fulfil its mandate effectively, and to conclude most investigations within a 6 month timeframe. SIRC’s powers to review CSEC’s activities should also be broadened and deepened, as it has itself requested for years.157

 

7. Implement the oversight recommendations of the 2006 O’Connor Report:

In his 2006 report into the Maher Arar affair, Justice Dennis O’Connor made a number of recommendations aimed at boosting oversight of Canada’s security agencies. These included the creation of a new oversight agency for the RCMP, and a substantially expanded role for SIRC in overseeing not just CSIS but also the national security activities of a number of other government agencies.158 Justice O’Connor also recommended a committee to better coordinate the activities of Canada’s various national security watchdogs.159 Many of his recommendations are reflected in the proposals set out in this report. The government has ignored Justice O’Connor’s common sense recommendations for over eight years. Their implementation is long overdue.

 

8. Establish an Interception Commissioner to review the interception of private communications by spy agencies:

Canada should establish an Interception Commissioner, tasked with reviewing the interception of communications and the acquisition and disclosure of personal information by the government. This proposal was selected as a priority by 62% of participants in our crowdsourcing program. The U.K. has a well-established Interception of Communications Commissioner’s Office160 responsible for ensuring that the surveillance powers granted to government agencies are being used correctly. However there are a number of serious weaknesses in the U.K. model, including what one expert observer describes as a culture of “passive and highly trusting regulation.”161 Canada should avoid these weaknesses, and ensure that a Canadian Interception Commissioner has the resources, powers, and teeth necessary to ensure that government agencies comply with the law.

 

9. Rein in the steep costs of excessive government surveillance:

For years, Canadian taxpayers have shouldered a rapid increase in costs associated with surveillance.162 We can make a start on reining in these costs through the development of clear cost projections by the Parliamentary Budget Officer, with subsequent evaluation by the Auditor General, for current surveillance and data collection infrastructure as well as that envisioned by any new legislation or regulations.

Cost breakdowns should also cover the ongoing costs for telecommunications providers and online service providers associated with processing requests for information, and the costs of external oversight mechanisms. Particular attention should be paid to whether these costs will impact disproportionately on Canadian taxpayers or businesses. The underlying assumptions for any costs projections should be the subject of public debate. Cost projections for any new or existing privacy-impacting legislation or regulations must include a budget for oversight mechanisms, including but not limited to the federal and provincial Privacy Commissioners’ need for resources.

 

10. Going forward, ensure that oversight keeps pace with new spy agency capabilities and powers:

Any new powers that may in future be granted to CSIS, CSE, or other government agencies to access or transmit citizens’ personal information must include comprehensive and detailed external oversight mechanisms, a system of enforced deterrents for abuse, and mechanisms to ensure individuals are knowledgeable about and in control of the flow of the dissemination of their information.

Any new powers must involve clear external, independent oversight mechanisms with detailed reporting obligations (to Parliament and the public), which encompass all activities that involve the gathering and sharing of Canadians’ personal information by government authorities. Oversight bodies must be provided with the resources they need to identify and report when government agencies fail to comply with the law.

Footnotes: 

[141] Office of the Privacy Commissioner: 2014 Survey of Canadians on Privacy. Source: https://www.priv.gc.ca/information/por-rop/2015/por_2014_12_e.asp

[142] Angus-Reid: February 2015 survey on Bill C-51. Source: http://angusreid.org/c51/

[143] Office of the Communications Security Establishment Commissioner: 2012-2013 departmental performance report. Source: http://www.ocsec-bccst.gc.ca/finance/2012-2013/dpr-rmr/index_e.php

[144] Ottawa Citizen: Budget for spy agency almost doubles...budgets for federal watchdogs cut. Source: http://ottawacitizen.com/news/national/defence-watch/budget-for-spy-agency-almost-doubles-budgets-for-federal-watchdogs-cut

[145] CBC News: CSEC watchdog muzzled, defanged. Source: http://www.cbc.ca/m/touch/news/story/1.2462279

[146] Huffington Post: John Major, retired supreme court justice, warned over ‘knee jerk’ reaction to Ottawa attack. Source: http://www.huffingtonpost.ca/2014/10/29/ottawa-attack-security-legislation_n_6070832.html

[147] CBC News: CSIS watchdog starved of staff and resources. Source: http://www.cbc.ca/news/politics/csis-watchdog-agency-starved-of-staff-resources-1.2965276

[148] Global News: CSIS obstructed by spy watchdog, report says. Source: http://globalnews.ca/news/1637582/csis-obstructed-spy-watchdog-report-says/

[149] Ottawa Citizen: Depleted spy watchdog SIRC scrambles to keep up with CSIS. Source: http://ottawacitizen.com/news/national/depleted-spy-watchdog-sirc-scrambles-to-keep-up-with-csis

[150] CBC News: CSIS watchdog starved of staff and resources. Source: http://www.cbc.ca/news/politics/csis-watchdog-agency-starved-of-staff-resources-1.2965276

[151] City News: Empty chairs at Canada’s spy watchdog as government strengthens CSIS hand. Source: http://www.citynews.ca/2014/10/28/empty-chairs-at-canadas-spy-watchdog-as-government-strengthens-csis-hand/

[152] The Globe and Mail: Parliament must reject Harper’s secret policeman bill. Source: http://www.theglobeandmail.com/globe-debate/editorials/parliament-must-reject-harpers-secret-policeman-bill/article22729037/

[153] Herald News: Senator’s bill calls for spy agency oversight. Source: http://thechronicleherald.ca/canada/1205463-senator%E2%80%99s-bill-calls-for-spy-agency-oversight

[154] Craig Forcese: Parliamentary review of intelligence service activity: Assessing the different models. Source: http://craigforcese.squarespace.com/national-security-law-blog/2014/5/13/parliamentary-review-of-intelligence-service-activity-assess.html

[155] The Globe and Mail: MacKay once backed intelligence oversight now rejected by Tories. Source: http://www.theglobeandmail.com/news/politics/mackay-once-backed-spy-oversight-now-rejected-by-tories/article22755202/

[156] The Globe and Mail: How Canada compares to ‘Five Eyes’ members in intelligence oversight. Source: http://www.theglobeandmail.com/news/politics/how-canada-compares-to-five-eyes-members-in-intelligence-oversight/article22754950/

[157] The Globe and Mail: Harper got spy powers right, but civilian oversight very wrong. Source: http://www.theglobeandmail.com/globe-debate/harper-got-spy-powers-right-but-civilian-oversight-very-wrong/article22756827/

[158] Justice O’Connor recommended that SIRC also monitor the national security activities of Citizenship and Immigration Canada, Transport Canada, the Financial Transactions and Reports Analysis Centre, and the Department of Foreign Affairs and International Trade.

[159] Canadian Press: O’Connor recommends more oversight of RCMP, CSIS. December 13, 2006. Source: http://circ.jmellon.com/docs/view.asp?id=1066

[160] Official website at http://www.iocco-uk.info/

[161] Mark Pack: Six reasons the Interception of Communications Commissioner has failed. Source: http://www.markpack.org.uk/31123/six-reasons-the-interception-of-communications-commissioner-has-failed

[162] CTV News: Eavesdropping agency's budget gets big increase, while watchdogs face cuts. Source: http://www.ctvnews.ca/politics/eavesdropping-agency-s-budget-gets-big-increase-while-watchdogs-face-cuts-1.1707332