Facing fallout from judges complaining of being kept in the dark over some of its activities, Canada’s domestic spy agency says its officials always keep CSIS’s political masters and watchdogs aware of what it is doing.
In a rare public statement, the director of the Canadian Security Intelligence Service says that his predecessors briefed ministers several times over the past decade about the kinds of data collection done within what CSIS calls its “Operational Data-Analysis Centre.”
“The creation of ODAC … was presented to the Minister of Public Safety in July, 2006, explaining the requirement for advanced analytics and the ability of ODAC to retain data, including metadata, for extended periods of time,” Michel Coulombe said in a statement released Sunday. “The minister was also briefed on the program in March, 2010.”
His remarks come days after the Federal Court released a scathing ruling faulting CSIS for unlawful data retention and not being forthright with judges. CSIS’s current minister, Ralph Goodale, has also since complained of lax record keeping by the spy agency.
Most Canadians had never heard of the ODAC intelligence facility until last week. While much remains murky, it appears to be a repository of all kinds of data that federal intelligence analysts can study in attempts to predict, or better understand, security threats.
Officials will not speak to what kinds of data are kept within ODAC. But news of its existence comes as some of CSIS’s close counterparts, in Canada and abroad, have lately stood accused of unlawfully amassing and trading phone logs, internet trails and other kinds of telecommunications “metadata” in gigantic volumes.
The issue for CSIS is that its foundational 1984 law created it as more of an agency of detectives than computer scientists. CSIS was further ordered by Parliament to refrain from collecting any more intelligence than is “strictly necessary.” It is this very rule that is behind last week’s findings by the Federal Court.
The court vets all of CSIS’s wiretap applications. Yet, Justice Simon Noël said the spy agency breached its “duty of candour” by never telling judges about the existence of ODAC.
He ruled that CSIS had been unlawfully retaining information by indefinitely keeping metadata relating to people who were determined not to be threats.
These people had first come to the attention of the agency because they had been in proximity to CSIS “targets,” such as suspected terrorists and foreign spies.
The crux of the Federal Court’s finding is that if CSIS cannot collect any more records than are “strictly necessary,” then it cannot keep extraneous information either. And this apparently contradicts a decade’s worth of advice CSIS had been getting from its Justice Department lawyers.
“I would like to make it clear that the service was not knowingly exceeding the scope of the CSIS Act,” said Mr. Coulombe’s statement, which stressed that CSIS always works with its lawyers. He said that CSIS never intended to withhold relevant information from the court.
While Mr. Coulombe said his agency always complies with any ministerial guidance it is given, it remains unclear what kinds of conversations his predecessors would have had with former public safety ministers.
The ones he mentioned, from 2006 and 2010, were Conservatives Stockwell Day and Vic Toews.
On Friday, Mr. Goodale, the current Minister, was asked whether ODAC had required ministerial approval to set up. He said that wasn’t clear to him because “the records of the agency back at that point in time apparently do not provide that kind of information.”
Three CSIS watchdog agencies, including the Security Intelligence Review Committee, were apprised of what was happening within the data centre, Mr. Coulombe said.
SIRC made criticisms of practises in a report released this past January. Federal Court judges noticed them.
What resulted, months later, was Justice Noël’s ruling, which he wrote after four hearings involving several CSIS witnesses and 13 other Federal Court judges.
CSIS has pledged to stop analyzing the contentious pool of “associated data,” saying it is a small subset of its data centre’s overall holdings. Justice Noël’s ruling suggests the subset could still be quite vast, especially given how spy agencies are now said to intercept telecommunications in enormous volumes.
“Technology behind the operation of warrants has progressed so much that the scope and volume of incidentally gathered information have been tremendously enlarged,” he writes at one point.