In re Warrants Pursuant to Section 12 and 21 of the Canadian Security Intelligence Services Act

• Background |
• EPIC's Interest in In re Warrants |
• Legal Documents |
• News

This case arises from an order issued by a lower court judge in Canada finding that the Attorney General had violated his duty of candor when he failed to notify the court that the Canadian Security Intelligence Service relied upon foreign intelligence agencies to intercept the communications of Canadians abroad.

Questions Presented

(1) Did the Attorney General of Canada violate his duty of candor by failing to disclose the cooperation between Canadian and foreign intelligence agencies when applying for a warrant to intercept phone calls of Canadian citizens traveling abroad?

(2) Does §12 of the Canadian Security Intelligence Service Act (CSIS) authorize Canadian intelligence services to request data from foreign intelligence agencies in intercepting the communications of Canadians abroad?

Background

In 2007, the Canadian Security Intelligence Service (CSIS) applied for a warrant to intercept communications between Canadian citizens outside of the country. A lower court denied the CSIS application, finding that the court lacked jurisdiction to authorize foreign surveillance. The CSIS then submitted a renewed warrant application in 2009, arguing that the court did have jurisdiction to issue the warrant because the interception itself would take place in Canada, even though the targets would be outside of the country. CSIS's argument persuaded the new judge in the second case and he issued the warrant. Similar warrants were subsequently issued by other judges.

In the aftermath of disclosures in 2013 about widespread surveillance by the U.S. National Security Agency and other foreign intelligence agencies, Canada's cryptology agency, the Communications Security Establishment (CSE) made a significant revelation in the agency's 2012-2013 Annual Report. The CSE recommended in the report that CSIS agents applying for overseas warrants inform judges that foreign intelligence services (NSA, etc) were involved in intercepting and sharing communications between Canadian citizens outside of the country.

After reading the CSE Annual Report, one of the judges who approved the renewed warrant applications brought the Canadian attorneys who submitted the applications in for questioning. In November 2013, the judge ruled that the Attorney General had violated his duty of candor to the court by illegally withholding information about the role of foreign intelligence services. The judge also held that the information sharing between the “Five Eyes” intelligence agencies (U.S., Canada, UK, Australia and New Zealand) violated both Canadian and international law. The government appealed to Canada's Federal Court of Appeal (FCA). In July 2014, the FCA affirmed the holding that Canada's attorneys failed to disclose information where they were legally obligated to do so. The court did not agree, however, that the intelligence sharing program necessarily violated domestic or international law, holding that that question should be kept "for another day on another application with a more fully developed record."

In February 2015, the Supreme Court of Canada agreed to hear the case.

EPIC's Interest in X(Re)

EPIC has a strong interest and expertise in protecting fundamental human rights, including the right to privacy. The routine collection of private communications without reasonable suspicion infringes on that right, and judicial oversight is necessary to ensure that interception capabilities are not abused. The unregulated disclosure of private communications without adequate protection violates established international law principles on privacy and personal autonomy. Since the 2013 revelations about surveillance activities conducted by U.S. and foreign intelligence agencies, EPIC has continually advocated against the unauthorized and unrestricted bulk collection of private communications data, EPIC sought documentation on the legal authority of the NSA's "PRISM" program, EPIC petitioned the Supreme Court to end the bulk collection of domestic and international telephone call records, and EPIC has filed amicus briefs in support of surveillance challenges in the United States. The Supreme Court of Canada's review of Re(X) is an opportunity to advocate for the privacy rights of foreign nationals and in favor of limits on the disclosure of private communications by intelligence agencies.

Legal Documents

Supreme Court of Canada

• In the Matter of an Application for Warrants Pursuant to Sections 12 and 21 of the Canadian Security Intelligence Service Act

Federal Court of Appeal

• X(Re), 2014 FCA 249 (Jul. 31, 2014)

Federal Court

• X(Re), 2013 FC 1275 (Nov. 22, 2013) holding that lawyers failed to disclose following additional evidence and argument
• X(Re), 2009 FC 1058 (Oct. 5, 2009) granting the original warrant

Relevant Publications

• Laura Donohue, Bulk Metadata Collection: Statutory And Constitutional Considerations, 37 Harv. J.L. & Pub. Pol’y 759 (2013)
• The President’s Review Group On Intelligence & Communications Technologies, Liberty And Security In A Changing World (Dec. 12, 2013)
• Bruce Schneier, Metadata Equals Surveillance, Schneier on Security (Sept. 23, 2013)

News Stories