Home / Op-Ed: Suing for secret spying

Op-Ed: Suing for secret spying

By Wesley Wark
Published October 23rd, 2013/ottawacitizen.com

“Canadians have periodically worried, ever since the 9/11 attacks, whether we have lost the delicate balance between civil liberties and security.

We have worried about many things: “draconian” elements of the Anti-Terrorism Act passed in December 2001; judicial fairness in depriving Canadian refugee claimants of their liberties in security certificate cases; the treatment of Afghan combat detainees in Canadian hands; policies for sharing intelligence with states that practise the abuse and torture of prisoners; the melding of our national security policies with those of the United States.

There may have been a common thread to all these worries, regarding the enhanced role being played by intelligence in the security affairs of Canada, but it was barely acknowledged, and it is fair to say that our worries have been episodic and never quite grave enough to occasion much loss of collective sleep.

The Edward Snowden revelations about global and domestic snooping by the National Security Agency in the United States, with their side dish of news about Canadian intelligence involvement in similar activities, have given rise to yet another expression of concern about the elusive delicate balance.

To give point to this concern, the Canadian government now finds itself confronted with a lawsuit issued by the British Columbia Civil Liberties Association at the B.C. Supreme Court which charges that the activities of the Communications Security Establishment Canada in collecting electronic intelligence are unlawful and in breach of the Canadian Charter of Rights and Freedoms. For the first time in its long history (dating back to 1946), and for the first time since being granted a legislative mandate in 2001, the CSEC finds itself uncomfortably under a legal microscope.

There is much at stake in this uneven legal battle between a small civil liberties organization and big government and one of its most important secret agencies. The Canadian government may be inclined to view the BCCLA lawsuit as a legal fly to swat, but it is yet another thing that takes it off message from its economic stewardship, and more savvy political thinkers (assuming they exist) might recognize that Goliaths don’t always win David-and-Goliath battles, particularly in the age of social media. Even the Conservative base may not take too warmly to an incomprehensible story about Big Brother-style surveillance. Support for the mantra that feigns indifference to surveillance (“I’m not worried; I have nothing to hide”) may prove surprisingly thin. The more stories that come out about far-reaching surveillance practices, the more Canadians may rediscover a taste for privacy and for shoring up what the Charter in Section 8 describes as the fundamental right to be protected “against unreasonable search or seizure.”

For the Communications Security Establishment, the lawsuit clearly threatens its powers and threatens its ability to collect intelligence in a borderless world of electronic communications.

The very reason it was given the legal authorities provided for in the Anti-Terrorism Act was to ensure it wouldn’t go dark in an age of teeming communications when “listening in” to the enemy, whether a terrorist group or a rogue state, had become vital. Not only does CSEC need lawful authority, it also needs what is often called “social licence,” a general societal endorsement of its legitimacy.

Up until recently, few Canadians had even heard of CSEC, but now that it is in the spotlight, its social licence is suddenly in question. Without social licence, an intelligence agency can find itself hard up for funds, hard up for respect and hard up for new recruits. Even the computer geeks and proto-hackers that make up a sizable part of the CSEC’s young workforce are hardwired with a social conscience.

In fact, there is more. CSEC is a proud organization with an internal culture that proclaims its respect for the law — not an asset it wants to see slip away in the face of a bruising legal and societal battle.

For Canadians, the BCCLA lawsuit may seem to be one more episodic moment in our fitful concern with balancing civil liberties and security. But it is more than that. The lawsuit may force, where nothing else has, much greater transparency around intelligence practices adopted after 9/11.

It should also force a real debate over privacy protections. Should a government agency like CSEC be allowed to collect “metadata” (essentially data that describes telecommunications networks and activity rather than the content of communications themselves) regarding Canadians? Should CSEC, with ministerial authorization only, rather than with a warrant or other judicial approval, be allowed to retain, use and even share with other government departments and foreign allies, the private communications of Canadians?

The BCCLA lawsuit has shone a light in a dark corner. From it may come a greater appreciation of how to protect our identities and rights as citizens of cyberspace. And from it may come a better appreciation of the need, and necessary limits, of intelligence-gathering by democratic societies.”

Wesley Wark is a visiting professor at the Graduate School of Public and International Affairs at the University of Ottawa and an expert on intelligence and security issues.