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CSIS program illegally spied for a decade, judge rules
Canada's spies collected data on people who posed no threat to national security since 2006, failed to inform courts.
By ALEX BOUTILIEROttawa Bureau Reporter
Thu., Nov. 3, 2016
OTTAWA--Canada's spies for almost a decade illegally kept and analyzed data on people who posed no threat to national security, a Federal Court judge has ruled.
In a scathing ruling, Justice Simon Noël said the Canadian Security Intelligence Service had illegally retained an unknown amount of data on "third party" and "non-threat" individuals since 2006.
CSIS fed that data into a powerful database that allowed the agency to draw out "specific, intimate insights into the lifestyle and personal choices of individuals," read the heavily censored court ruling, circulated to journalists on Thursday.
Moreover, CSIS failed to inform the court, which acts as one of the only checks against the agency's investigative powers, about the program for almost a decade.
"(Judges) serve as the gatekeepers of intrusive powers, ensuring a balance between private interest and the state's need to intrude upon that privacy for the collective good," Noël wrote.
"If the CSIS unduly limits the flow of information the court needs to make proper determinations, then the CSIS can be seen as manipulating the judicial decision-making process."
According to the court documents, CSIS created the Operational Data Analysis Centre (ODAC) in 2006 to be a "centre of excellence for the exploitation and analysis" of different data sets.
One source of ODAC's data was gathered through legally approved surveillance of CSIS targets. Anyone who communicated with the target -- family, friends, employers -- would be considered "third party" or "non-threat" individuals.
Information about those people, who are not suspected threats or targeted by the agency, was scraped into the ODAC. CSIS wanted to retain that information -- metadata like telephone numbers and Internet protocol addresses -- indefinitely.
While the information seems innocuous in isolation, the court documents make clear it was collected to give the agency highly detailed intelligence. And while collecting the data was legal, retaining it indefinitely was not.
In the wake of Noël's ruling, CSIS has halted all access and analysis of the data.
The revelations prompted an unprecedented snap press conference by CSIS director Michel Coulombe. Coulombe told journalists the agency believed their actions were legal, from 2006 until October's ruling, but accepts Noël's findings.
Coulombe could not, however, explain why CSIS believed they needed to inform the court of ODAC's existence in 2006, but failed to do so for almost 10 years.
"I'll be honest, we went through our records and we really can't find a good explanation of why the court was not informed," Coulombe told reporters Thursday evening.
Coulombe was clear that CSIS believed the program was useful and effective, and said he would like to keep it in operation.
"That is something I will discuss with officials, (Public Safety Minister Ralph Goodale) and it is a public policy decision that the government and parliamentarians will have to make," the director said.
In a statement, Goodale said the government will not appeal Noël's decision.
But the minister did leave open the possibility of changing the CSIS Act to allow for such techniques in the future. Goodale noted the court ruling found the legislation governing CSIS was beginning to "show its age" after 30 years, and threats and investigative techniques have changed over that time.
Goodale said he would be discussing CSIS's failure to tell the court the full truth, however, with the agency's senior management.
"In matters of security and intelligence, Canadians need to have confidence that all the departments and agencies of the (government) are being effective at keeping Canadians safe, and equally, that they are safeguarding our rights and freedoms," Goodale wrote.
Noël noted this was the second time in three years that the Federal Court has found that CSIS failed to provide key information judges needed to properly authorize the agency's activities.
"I wonder what it will take to ensure that such findings are taken seriously," Noël wrote. "Must a contempt of court proceeding, with all its related consequences, be necessary in the future?"
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