In a recent decision declassified on Tuesday, the Federal Court of Canada rebuked the Canadian Security Intelligence Service (CSIS) over the agency’s handling of individuals’ personal information, urging it to “do better.” Chief Justice Crampton’s decision addressed potential misrepresentations to the court in warrants to access Canadian citizens’ personal data.
Under the current legislation, section 16 of the Canadian Security Intelligence Service Act, CSIS is authorized to gather foreign intelligence within Canada. However, the enactment of these duties demands the judicial approval of a warrant from the Canadian judiciary. This case examined the support provided by the Canadian Communications Security Establishments (CSE) to CSIS and the improper disclosure of Canadian Identifying Information (CII) by the CSE.
The Attorney General of Canada uncovered that CSE disclosed data collected under court-approved warrants in violation of the key principle proposed by CSIS. Notably, the failure to restrict access to sensitive reports to a need-to-know basis was among these inconsistencies, which inadvertently granted unauthorized access to seven additional departments.
The court discovered that CSIS was unaware of the disparity between the CSE’s practices and its internal guidelines, including minimization procedures. The court was quick to note, though, that this discrepancy did not lead to the release of CII that CSIS would have otherwise kept confidential.
While acknowledging an institutional failure, the court urged CSIS to uphold its duty proactively and diligently. This includes treating the information collected through judicial warrants in line with the law, the mandates of the warrants, and the principles it previously presented to the court.
The court additionally revealed CSIS’s failure to inform it of significant discoveries by the National Security and Intelligence Review Agency (NSIRA) that could impact its decisions on warrant approvals.
In relation to this, Canada initiated a public consultation in November 2023 to amend the Canadian Security Intelligence Service Act. The proposed amendment aims to give CSIS more authority in sharing information with agencies outside the Canadian government and to collect foreign intelligence within Canada. The amendment also proposes the establishment of new judicial control standards based on the invasiveness of the investigative techniques to be employed.