BREAKING: New Snowden Document Shows Something But We Don't Know Exactly What

The headline above is the one that I think probably best captures the content of the NSA document at the heart of the recent Toronto G20/G8 spying story.  This appears to be the first in the additional trove of documents that Glen Greenwald acquired from Snowden that pertain to Canada.  Mr. Greenwald is working with the CBC on this story, and appears as a co-author on the web version of the story and a commentator in the broadcast version

(In the interest of full disclosure: I was also asked to comment, providing a description of the legal rules at issue and asked to opine on the questions of illegality if certain facts proved true.  More on that below.)

Truth be told, a lot of facts remain to be established.  The document is some sort of briefing note describing NSA preparation for the G8/G20 summit and its contribution to a broader US intelligence/security operation, centred in the US embassy.  As best I recall after a quick read, the security concerns raised in the document relate to the prospect of anti-globalization unrest.  But there is also language about supporting US policy goals at the summit.

The NSA contribution would be "virtual" -- the document suggests no physical presence at the operation command centre at the US embassy. 

In a passage that is the ultimate source of many of the concerns raised in the CBC story, the document says that the NSA activities (whatever they were) would be "closely co-ordinated with the Canadian partner".  I don't recall the partner being identified per se, but a reasonable inference is that the NSA's "Canadian partner" is Communications Security Establishment Canada (CSEC).

What all this means isn't clear. I think it is pretty apparent that there was NSA communication intercept activity related to the G8/G20. Signals intelligence (SIGINT), after all, is what the NSA does.  And it would be astonishing if the NSA stood-down on providing SIGINT because, say, a major international meeting was taking place in neighbouring, friendly, ally Canada.  This is especially true given that participants at that summit included representatives of states that vary in terms of their level of friendliness.  So to say there was signals intelligence work in support of the G8/G20 is like declaiming "dog bites man!"  (I have commented before about the banality of spying and summitry.)

The more interesting issue is "what sort of signals intelligence work" and "what was Canada's role".

On this, there is a range of possibilities.  For sake of brevity, let me propose three.  The first I would consider probable and banal.  The second I would consider both improbable and troubling.  The third I would consider a plausible compromise possibility.

Scenario 1

Under this scenario, the Snowden document is suggesting that NSA SIGINT from its global network will be fed into the intelligence operation at the US embassy.  Indeed, I would assume that this had to be happening.  If you are worried about, among other things, protecting the President, then you need intelligence from everywhere. 

Under this construal, it does not necessarily follow that NSA is spying on Canadian soil -- and I don't remember seeing anything in the Snowden document requiring this "spying in Canada" conclusion.  The SIGINT could be drawn purely from a third party state.  Or it could be drawn from communications between someone in Canada (say a delegate at the conference) and a third party state. 

If NSA was doing all this intercepting outside of Canada, accessing the non-Canadian side of the conversation, without Canadian connivance, I am hard pressed to see how Canadian legal issues arise.  (What the law in the place where the intercept takes place says is another matter, but that needn't worry us in Canada because we can't control what the NSA does in its third party state or domestic operations.) 

It may be that resulting intelligence is then shared with the "Canadian partner".  But if Canada neither sought nor requested intercept of communications that had a Canadian nexus or link, I don't see how the information sharing itself is legally doubtful.

Scenario 2

In addition to #1, NSA conducts surveillance operations against Canadians or persons within Canada.  

If done autonomously, without Canadian blessing, this raises international law issues (sovereignty, in particular).  It would also appear to be a violation of the understanding between "five eyes" states about spying on each other (although I have no idea what the scope of that understanding is, and what provisos and caveats it includes. In any event, its not like this practice is "law"). 

If, on the other hand, this spying was done with Canadian blessing/cooperation/assistance, we are in a completely different world.  The only thing that stops intercepts of private communications (oral communications within Canada or originating in or directed to Canada) from being a crime under Part VI of the Criminal Code is lawful permission for the intercept. 

If you don't yourself have lawful permission to intercept, and you cooperate with someone else to do the intercept, that's called "aiding and abetting" or "conspiracy".  That is why in the 5 second excerpt of my 20 minute conversation with the CBC, I say: "If CSEC tasked NSA to conduct spying activities on Canadians within Canada that CSEC itself was not authorized to take, then I am comfortable saying that would be an unlawful undertaking by CSEC."

The CBC story starts by saying: "Prime Minister Stephen Harper's government allowed the largest American spy agency to conduct widespread surveillance in Canada during the 2010 G8 and G20 summits."  As I have suggested in scenario 1, this may not be the only way to read the Snowden document.  But since this construal of the facts was the context for the 20 minutes chat surrounding my 5 second excerpt in the story, the question must be "does the Canadian partner have lawful permission to delegate this spying function". 

If we are talking outright surveillance of persons in Canada in circumstances where those persons have a reasonable expectation of privacy (telephone calls, for instance), then there is only one way in which the "Canadian partner" would have lawful authorization: with a judicial warrant.  CSEC's foreign intelligence mandate under its governing statute (mandate (a) of s.273.61(1) of the National Defence Act) just can't reach internal, Canadian intercepts.  And so, if it (or any other government agency) is conducting these sorts of intercepts, or facilitating these sorts of intercepts by a foreign partner, they need to be buttressed by a warrant. 

Spying on foreign leaders is not a reason for getting a warrant under the Criminal Code or in relation to CSIS's security intelligence mandate under s.12 of the CSIS Act. 

It may, however, be possible for CSIS to obtain a "foreign intelligence" warrant under s.16 of the CSIS Act.  And so, for Canada's conduct to be lawful if "Prime Minister Stephen Harper's government allowed the largest American spy agency to conduct widespread surveillance in Canada during the 2010 G8 and G20 summits", the following would have to be true:

  • CSIS received in writing a request from the Minister of Foreign Affairs for assistance in collecting information or intelligence relating to the capabilities, intentions or activities of a foreign state or group of foreign states.
  • The Minister of Public Safety's delegate believed, on reasonable grounds, that a warrant was required for CSIS to perform this function and approved an effort to obtain this warrant from the Federal Court.
  • A designated Federal Court judge:
  1.  concluded on reasonable and probable grounds that a warrant was required to allow CSIS to perform this foreign intelligence function, and that "other investigative procedures have been tried and have failed or why it appears that they are unlikely to succeed, that the urgency of the matter is such that it would be impractical to carry out the investigation using only other investigative procedures or that without a warrant under this section it is likely that information of importance with respect to" collecting information or intelligence relating to the capabilities, intentions or activities of a foreign state or group of foreign states would not be obtained;
  2. was told by a government meeting its duty of candour that the actual intercept activity would be undertaken (at least in part) by CSEC asking NSA to help and in order to help NSA support US policy objectives at the summit;
  3. decided to issue a warrant specifying precisely the type of communication to be intercepted, the identity of the targets, where the intercept would take place and the duration of the intercept activity.
  • CSIS then asked CSEC to provide technical assistance to CSIS in performing its authorized intercept activities under CSEC's "mandate C" of assisting security intelligence services.
  • CSEC then asked NSA to help, with that help being anticipated in the warrant that undergirds the legality of this whole thing.

Where and when a Federal Court judge will issue a "section 16" warrant is totally a mystery to me.  The one public case (of which I am aware) relating to a section 16 warrant has nothing to do with the sort of facts we are playing with in this scenario. 

I have not had time to review the legislative history of s.16 and I'm sure I'm naive.  But I confess, I have a lot of difficulty imagining CSIS coming to Federal Court and persuading a judge to authorize spying done by or in part by a foreign intelligence service operating in Canada and targeting foreign leaders at an international conference, in order to gather information on, say, negotiating positions so that NSA can support US policy objectives.  That is a whole lot of bridges to cross.

On the other hand, I could see a Federal Court judge issuing a warrant tied to CSIS's s.12 security intelligence functions in which there was a clear understanding that the Canadian government would call upon allied assets to assist in the security intelligence effort. 

And so one final scenario that comes to mind:

Scenario 3

In support of US policy objectives, NSA undertook the activities listed in scenario 1. In support of the US security intelligence operation (e.g., protecting the President), it worked closely with its Canadian partners, who in turn had lawful warrants to conduct intercepts for security intelligence (or even law enforcement) purposes (including with NSA assistance).

Conclusion

So once again, the Snowden documents and partial, decontextualized releases of internal government memos take us down the rabbit hole.

I would be astonished (and horrified) if the actual facts added up to all the requirements needed to satisfy the pre-requisites in the statement I made in my 5 second extract:  "If CSEC tasked NSA to conduct spying activities on Canadians within Canada that CSEC itself was not authorized to take, then I am comfortable saying that would be an unlawful undertaking by CSEC." 

For this to happen, a lot of people -- including some very good lawyers -- would have to have been sidestepped by the operational people or asleep at the switch.  And the CSEC commissioner would need to have missed all this in his regular review audits.

But given other revelations (including those concerning intercepts at the 2009 London G20) the CBC and Mr. Greenwald are absolutely and firmly right to raise the issues and doubts that they do in their story. 

And so now what happens?

While I understand the operational constraints on addressing these kind of leaks, the standard "neither confirm nor deny" response from CSEC risks being perceived in the public mind as an implicit admission of skullduggery.  And that would be unfortunate, if all the legal ducks were in fact lined up properly. 

And so if I were CSEC this morning, I would be on the phone to the Commissioner of the CSEC (the review body) inviting a prompt review of the matter and then a public reporting by the Commissioner so fulsome that it would give many in the business heartache. 

The alternative is a lot more of us playing "speculate about the spies" with each twist and turn of the rabbit hole pulling us deeper and deeper into a discourse that may or may not be loosely anchored in reality.  And that gives me heartache.  I'd like to share the pain.