“Innocent Partner”?  Reassessing the Canadian Intelligence Apparatus

(By Daniel Meister, Queen’s University)


 

We live in a country that illegally conducts widespread surveillance, of citizens and non-citizens alike, both domestically and internationally, a large part of which is conducted at the behest of a foreign power. It is imperative that we recognize this.  But where does the story of spying in Canada begin? Not with the related Edward Snowden revelations, for Canada has a history of extreme and illegal and extralegal measures by various federal agencies.

Unfortunately, much like our American neighbours, many of us believed that the state was not abusing its power and that any “intelligence-gathering” programs would be well managed, given proper oversight, and run with restraint and within the confines of the law. Alas, this is simply not the case nor is it without precedent. The RCMP has a history of spying on such threats as Tommy Douglas (widely considered the Father of Medicare), the Toronto Symphony Orchestra, Tupperware parties, and high school students.[i] Beyond currently collecting Canadian citizens’ metadata, Canadian intelligence agencies are also actively involved in illegally spying on perceived threats such as individuals, First Nations groups, and environmental organizations that challenge the proposed Enbridge pipeline project – not that spying could ever be political in nature.[ii]

For whatever reason, it has taken these recent “revelations” by Snowden to put the reality of surveillance into the minds of Canadians. However, far too many remain ignorant of the activities and even the existence of agencies such as the Canadian Security Intelligence Service (CSIS) and the Communications Security Establishment Canada (CSEC). Regarding what type of information CSIS collects, Michael Geist of the University of Ottawa suggests the “problem is that we just don’t know.  So much is shrouded in secrecy.”[iii] Ignorance thus stems not only from apathy or disinterest, but also from intentional suppression of information, for there has long been a concerted effort to keep the activities of these organizations secret. In an interview with the CBC, former head of CSEC John Adams admitted that “the agency has deliberately kept Canadians in the dark about its operations for decades.”[iv] Fortunately for us, though no Canadian has been brave enough to blow the whistle on our out-of-control security apparatus, Snowden’s documents have revealed some of its workings.

On November 27, 2013, the CBC broke the story that not only had the CSEC gathered intelligence during the G20 summit in Toronto, but the federal government had allowed the Americans’ National Security Agency (NSA) to gather intelligence as well as by intercepting phone calls and hacking into computer systems.[v] The Canadian Press also reported in late 2013 that the Canadian government was hiring a contractor to continuously monitor all social media content.  Mark Blevis, who was interviewed for the article, made the point that although all that data is publicly available, the question remains what the government plans on doing with it.[vi]

The story continues to unfold with such speed that it is almost impossible to stay on top of it, and it is likely that by the time this is published, or shortly thereafter, some new plot twist will emerge. The most recent Snowden-sourced document that was released revealed that CSEC used the free Internet service at a Canadian airport to track thousands of passengers’ wireless devices. The CBC quoted one of Canada’s foremost authorities on cyber-security, Ronald Deibert, as saying “I can’t see any circumstance in which this would not be unlawful, under current Canadian law, under our Charter, under CSEC’s mandates” – which is simply a torturous way of saying that it is undeniably illegal.[vii] CSEC denies their actions were illegal, and Defense Minister Rob Nicholson has publicly come to their defense. But this is hardly new news.  Former CSEC commissioner Justice Robert Decary in his annual report for 2012-2013, stated that some of the agency’s spying activities “may have been directed at Canadians, contrary to law.”[viii]  Evidence suggests that this ambiguity is likely intentional. CBC reporter Greg Weston noted that CSEC’s records were “so unclear or incomplete that [Decary] was unable to determine whether the agency had been operating legally.” The same complaint had been made by Decary’s predecessor.

Though there are a multitude of examples of deception and deliberate circumvention of the law, will anyone be held accountable?  Don’t hold your breath.

In March of 2013 the American Director of National Intelligence, James Clapper, lied while answering a question during a Senate intelligence committee meeting, denying that the NSA collected data on Americans. After documents leaked by Snowden revealed the lie, Clapper acknowledged in a letter to Congress that the response was “clearly erroneous,” and publicly stated, “[I] responded in what I thought was the most truthful, or least untruthful manner.”[ix] Yet Clapper, despite lying to the American people, remains in his position and President Obama has publicly defended him, noting simply that he “should have been more careful about how he responded.”[x] But of course, Clapper could not answer truthfully because it would have revealed the existence of a classified program. And here we enter a world where legality becomes a mere concept to be toyed with and twisted to fit the needs of those in charge of “security.” Ron Wyden, who sits on the American Senate Intelligence Committee, was interviewed by Jeremy Scahill in the latter’s remarkably revealing (and remarkably narcissistic) documentary Dirty Wars. About the issue of legality, Wyden stated that “it is almost as if there are two laws in America, and the American people would be extraordinarily surprised if they could see the difference between what they believe a law says and how it has actually be interpreted in secret.”  “You’re not permitted to disclose that difference publicly?”  Scahill asked. “That’s correct,” Wyden replied.[xi]

Of course, this is an American example; so how relevant is it to the story of snooping in Canada? Unfortunately, it is an integral part. Not only are Canadians being spied on, having their rights infringed upon, and being deliberately kept in the dark about it by the agencies in question, but espionage is only part of a much broader integration of Canadian state mechanisms with a foreign power: the United States. In their book, Warrior Nation: Rebranding Canada in an Age of Anxiety, historian Ian McKay and journalist Jamie Swift argue that “Canada’s armed forces have become so deeply integrated with the U.S. military establishment that it is quite reasonable to wonder whether they really are this country’s own armed forces.”[xii]

Likewise, the intelligence apparatus of the two nations have also become deeply integrated – though there is no question as to who is in charge.  Regarding CSEC allowing the NSA to snoop during the G20 summit, Weston wrote that the activities between these two literal partners-in-crime were not simply concerned with securing sites and preventing terrorist attacks, but also to “forward the policy goals of the United States and Canada” which “fits a pattern of economic and political espionage” by these two agencies.[xiii]  On December 9th, a further release revealed that the Canadian government had set up spying posts in some 20 countries and conducted espionage against “trading partners” – both at the behest of the NSA.[xiv]

While Canada may be the junior partner, they are a valuable one.  The reason that CSEC is so useful to the NSA is due to Canada’s better reputation around the world; Canada is able to gain information in areas that American agencies cannot access.  “I think we still trade on a degree of an international brand as an innocent partner in the international sphere,” Wesley Wark of the University of Ottawa told the CBC. “There’s not that much known about Canadian intelligence.”[xv]  But while many Canadians may view their country’s technical and military prowess as inferior to the Americans, the Snowden documents make it clear that CSEC is “a sophisticated, capable and highly respected intelligence partner involved in all manner of joint spying operations.”[xvi] The documents also began to shed light on just how intertwined the NSA and CSEC have become.  In return for the data CSEC provides, the NSA equips Canada with computer hardware and software.  This is especially noteworthy in light of revelations that the NSA, when faced with a particularly difficult target, intercepts computer deliveries and modifies hardware in such a way that data can be stolen.[xvii]  In Canada’s case, it would seem, no interceptions are required, for these deliveries are coming directly from the NSA.

Canada’s espionage, like its military, follows the direction of the American government, and their legal stance most likely mirrors the American’s as well. Let us keep in mind that CSEC was the agency that “helped develop a federal directive that lets government agencies use and share information that was likely extracted through torture.”[xviii] While they may not have built their own Guantanamo Bay, the Canadian government proved more than willing to benefit from the rotten fruits of their Big Brother’s labour. These quiet, extra-legal and illegal actions by tentacles of the Canadian state have been approved by the highest authority, just as in America where the Executive branch arguably wields more power than it ever has before. According to Wark, CSEC’s establishment of global spying posts would have needed authorization “from the ministerial level of the Canadian government – or even from the prime minister himself.”[xix] In both the continued Anglo-Imperialism (couched as it may be in the rhetoric of capitalism, democracy, freedom, or peace), and in the surveillance of Canadian citizens and foreign nationals, the Prime Minister’s hands are just as dirty as those of his American counterpart.[xx]

But Stephen Harper is remarkably unconcerned with the loss of Canadian sovereignty.  At the conclusion of the G20 Summit in Toronto (2010) he told reporters that, in reference to the necessity of working within the global economy, “I know some people don’t like it, it’s a loss of national sovereignty, but it is a simple reality. It is a simple reality.” While this interview was clearly in the context of economic realities, based on the patterns of decision making regarding both the military and the intelligence services in Canada, it seems that Harper views them as necessarily integrated in this framework for global (or, more accurately, Anglo-imperial) governance – despite his assertion that Canada “has no history of colonialism.”[xxi]

One of the main accusations against the NSA following the Snowden “revelations” was that snooping was out of control or that it had insufficient oversight.  What about in Canada?  In light of the revelations of CSEC’s global spying, the Defense Minister Rob Nicholson reassured the public that the agency’s activities “are subject to review by an independent commissioner.”  But, as Weston reports, this watchdog is “mostly muzzled and defanged, [its] reports to Parliament are first censored by the intelligence agency he is watching, then cleared by the minister politically responsible for any problems in the first place.”[xxii] Audaciously, CSEC is essentially tasked with policing itself, by being able to control what information this “watchdog” can release.  Even if they did release damaging information, the minister in charge of its release has a vested interest in suppressing it.  It is therefore clear that there is insufficient or ineffective oversight of Canada’s intelligence programs.

On February 14th, 2014, Canadians were made aware of simply how biased and ineffective this process is, when this watchdog denied that CSEC spied on Canadians by collecting data from airport Wi-Fi service. Ron Deibert, Director of the Canada Centre for Global Security Studies, told the CBC that this decision to deny that the collection of metadata constituted spying on Canadians “makes a mockery of public accountability and oversight.”[xxiii]  These developments are, quite frankly, alarming. But they are not new; they are simply newly revealed. And what is most alarming is the lack of public outcry.

When we study these issues, read the news reports that confirm the worst, and learn about the hegemony of the deeply entrenched power structures that shape global realities, it is so easy to sink into the warm embrace of fatalism.  But we must recognize that it need not be this way.  We can shape how the story of Canadian state surveillance continues to unfold, and our response to the “Snowden Revelations” should be two-fold.  First, we need to divest ourselves of the illusion of privacy.  Former head of CSEC John Adams succinctly summed it up: “The reality is if you’re on the internet, you literally might as well be on the front page of the Globe and Mail.  You have to know that if someone’s interested in you, they may well be listening or reading or whatever it might be.”[xxiv]

In both Canada and the US, authorities have blithely dismissed the increasing erosion of personal privacy. In mid-2013, an American federal magistrate ruled that “Cell phone users who fail to turn off their cell phones do not exhibit an expectation of privacy and such expectation would not be reasonable in any event.”[xxv] Put more plainly: if you don’t want to be tracked, turn off your phone. Of course, the NSA has had a technology in place since 2004 that gives them the ability to locate cell phones even when they have been turned off, so even this “expectation of privacy” is an illusion.[xxvi]

And as we already know, due to the committed relationship between the American and Canadian spy agencies, whichever techniques being used by the Americans are likely being used by the Canadian agencies as well. In an interview with the Globe and Mail, American whistleblower and former technical director of the NSA William Binney, discussing massive spying programs, warned Canadians that it wasn’t just happening in America; “every democracy is going this way.”[xxvii] Spying, metadata collection, lack of effective oversight – these things are not simply problems for American civil liberties, for we face them as well. As English political philosopher John Gray said, channelling Donald Rumsfeld: “While we live surrounded by unknown unknowns, we live on the basis of unknown knowns – intractable facts that we prefer to forget. We’d do better to confront these awkward realities and muddle through more intelligently.”[xxviii]  Which brings us to the second part of our response.

We need to not only be aware, but active. We need to take steps to increase our privacy, by reconsidering how we use social media and electronic forms of communication. But more important, we need to make our voices heard. We need to demand that the excessive surveillance of Canadians end, and that the illegal spying on Canadian citizens end. We must demand that adequate measures for oversight be put in place in order to ensure reasonable limits and transparency. And we must find ways of becoming part of the protest. The British Columbia Civil Liberties Association (BCLA.org) has launched a lawsuit against the government of Canada that questions the legality of CSEC’s spying programs. Visit their website, sign their statement, and spread the word. The government is watching: let’s give them a show. Or perhaps more accurately, let’s demand that they stop breaking the law and lying about it. That should not be too much to ask of a democracy.

 

 

[i] Kelly MCPharland, “CSIS needs to spill the truth on the Tommy Douglas file,” National Post, December 11, 2012 (accessed February 16, 2014); Reg Whitaker and Steve Hewitt, Canada and the Cold War (Toronto: James Lorimer, 2003), 109-112; and Gary Buse Kinsman, Dieter K. Buse, and Mercedes Steedman, eds.,  Whose National Security?  Canadian State Surveillance and the Creation of Enemies (Toronto: Between the Lines, 2000).  Cf. Marcel Martel, “‘They smell bad, have diseases, and are lazy’: RCMP Officers Reporting on Hippies in the Late Sixties,” Canadian Historical Review 90, no. 2 (June 2009): 215-245, and Steve Hewitt, Spying 101: The RCMP’s Secret Activities at Canadian Universities, 1917-1997 (Toronto: University Press, 2002).

[ii] British Columbia Civil Liberties Association, “Don’t Spy on Me!”, http://bccla

.org/dont-spy-on-me/ (accessed February 16, 2014).

[iii] Mark Gollom, “Should Canadians worry about data snooping?”  CBC News, June 12, 2013, http://www.cbc.ca/news/canada/should-canadians-worry-about-data-snooping-1.1330269 (accessed February 1, 2014).

[iv] Greg Weston, “Spy agency CSEC needs MP’s oversight, ex-director says,” CBC News, October 7, 2013, http://www.cbc.ca/news/politics/spy-agency-csec-needs-mps-oversight-ex-director-says-1.1928983 (accessed February 1, 2013).

[v] Greg Weston, Glen Greenwald, and Ryan Gallagher, “New Snowden docs show U.S. spied during G20 in Toronto,” CBC News, November 27, 2013, http://www.cbc.ca/news/politics/new-snowden-docs-show-u-s-spied-during-g20-in-toronto-1.2442448 (accessed November 27, 2013).

[vi] The Canadian Press, “Feds to monitor social media round-the-clock,” CBC News, November 29, 2013, http://www.cbc.ca/news/politics/feds-to-monitor-social-media-round-the-clock-1.2445224 (accessed February 1, 2014).

[vii] Greg Weston, “CSEC used airport Wi-Fi to track Canadian travellers: Edward Snowden document,” CBC News, January 30, 2014,  http://www.cbc.ca/news/politics/csec-used-airport-wi-fi-to-track-canadian-travellers-edward-snowden-documents-1.2517881 (accessed January 30, 2014).

[viii] Communications Security Establishment Commissioner, Annual Report 2012-2013 (Ottawa, Ontario), http://www.ocsec-bccst.gc.ca/ann-rpt/2012-2013/ann-rpt_e.pdf, p. 20.  Quoted in ibid.

[ix] James Clapper to Dianne Feinstein, Washington, June 21, 2013, George Washington University, National Security Archive, http://www2.gwu.edu/~nsarchiv/NSAEBB/NSAEBB436/docs/EBB-082.pdf (accessed February 1, 2014).

[x] Barack Obama, interview by Jake Tapper and Chelsea J. Carter, The Lead with Jake Tapper, CNN, January 31, 2013, http://www.cnn.com/2014/01/31/politics/obama-interview/ (accessed February 3, 2014).

[xi] Dirty Wars, directed by Richard Rowley (Sundance Selects, 2013), DVD.

[xii] Ian McKay and Jamie Swift, Warrior Nation: Rebranding Canada in an Age of Anxiety (Toronto: Between the Lines, 2012), 269.

[xiii] Weston, Greenwald, and Gallagher, “U.S. spied during G20 in Toronto.”

[xiv] Greg Weston, “Snowden document shows Canada set up spy posts for NSA,” CBC News, December 9, 2013, http://www.cbc.ca/news/politics/snowden-document-shows-canada-set-up-spy-posts-for-nsa-1.2456886 (accessed December 9, 2013).

[xv] Weston, “spy posts for NSA.”

[xvi] Ibid.

[xvii] The Associated Press, “NSA intercepts computer deliveries, says report,” CBC News, December 29, 2013, http://www.cbc.ca/news/world/nsa-intercepts-computer-deliveries-says-report-1.2478611 (accessed December 29, 2014).

[xviii] Jim Bronskill, “RCMP memo says CSEC, helped shaped directive on torture,” The Star, July 16, 2013, http://www.thestar.com/news/canada/2013/07/16/rcmp_memo_says_csec_helped_shape_directive_on_torture.

html (accessed February 1, 2014).

[xix] Weston, “spy posts for NSA.”

[xx] For a more in-depth discussion of the term “Anglo-imperialism,” see McKay and Swift, Warrior Nation.

[xxi] David Ljunggren, “Every G20 nation wants to be Canada, insists PM,” Reuters, September 25, 2009, http://www.reuters.com/article/2009/09/26/columns-us-g20-canada-advantages-idUSTRE58P05Z20090926 (accessed February 15, 2014).

[xxii] Greg Weston, “CSEC watchdog muzzled, defanged,” CBC News, December 13, 2013 http://www.cbc.ca/news/politics/csec-watchdog-muzzled-defanged-greg-weston-1.2462279 (accessed December 13, 2013).

[xxiii] Greg Weston, “CSEC exoneration a ‘mockery of public accountability,’” CBC News, February 14, 2014, http://www.cbc.ca/news/canada/csec-exoneration-a-mockery-of-public-accountability-1.2536561 (accessed February 15, 2014).

[xxiv] Greg Weston, “Spy agency CSEC needs MPs’ oversight, ex-director says,” CBC News, October 7, 2013, http://www.cbc.ca/news/politics/spy-agency-csec-needs-mps-oversight-ex-director-says-1.1928983 (accessed February 1, 2014).

[xxv] Suzanne Choney, “Don’t want to be tracked?  Turn cellphone off, says magistrate,” NBC News, May 17, 2013, http://www.nbcnews.com/technology/dont-want-be-tracked-turn-cellphone-says-magistrate-1C9954245 (accessed May 17, 2013).

[xxvi] Dana Priest, “NSA growth fuelled by need to target terrorists,” The Washington Post, July 21, 2013, http://www.washingtonpost.com/world/national-security/nsa-growth-fueled-by-need-to-target-terrorists/2013/07

/21/24c93cf4-f0b1-11e2-bed3-b9b6fe264871_story.html (accessed February 1, 2014).

[xxvii] Colin Freeze, “Beware of data spying, former NSA officials warns Canadians,” The Globe and Mail, September 19, 2013, http://www.theglobeandmail.com/technology/beware-of-data-spying-former-nsa-official-warns-canadians/article14430225/ (accessed February 1, 2014).

[xxviii] John Gray, “A Point of View: See no Evil,” BBC News Magazine Online http://www.bbc.co.uk/news/magazine-25680144 (accessed February 1, 2014).

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