The Canadian Security Intelligence Service building in Ottawa on May 14, 2013.Sean Kilpatrick/The Canadian Press
Canada’s spy agency is proposing that it be given the legal authority to disclose intelligence to entities such as universities, provinces and municipalities to help combat foreign interference.
The Canadian Security Intelligence Service recently released a consultation paper seeking input on a number of proposed changes to the CSIS Act, one of which would allow it to discuss sensitive intelligence with parties beyond the federal government.
A public inquiry into foreign interference in Canada by the Chinese government and other hostile states is under way with hearings set to begin Jan. 29. At the same time, Ottawa is considering changes to national-security laws.
CSIS said its governing legislation as currently written prevents it from speaking frankly to academic institutions about the threats they face. Canadian universities have been targets for espionage.
“CSIS cannot disclose intelligence to a Canadian university about foreign-interference threats to its research and work on emerging technologies, except in limited situations, generally either to collect information or to carry out a threat-reduction measure,” CSIS spokesperson Lindsay Sloane said.
“Canadian research and innovation is highly coveted and with the current limitations, CSIS resorts to sharing general and publicly available information with partners, leaving them ill-equipped to withstand foreign interference.”
The same problem affects CSIS interactions with other levels of government. The CSIS Act does not provide the agency “with sufficient authority to disclose classified intelligence to domestic partners outside the government of Canada,” CSIS said in its consultation paper.
“This means that CSIS generally cannot share relevant information with provinces, territories, Indigenous governments, or municipalities, except in limited situations, such as for the purposes of law enforcement or when they can take action that would reduce a specific threat,” Ms. Sloane said.
“CSIS’s inability to communicate more specific and tangible information prevents a full and frank discussion of threats, limiting partners’ ability to develop informed mitigation measures or build resiliency,” she said.
In the consultation document, CSIS says that in the early 1980s, when the CSIS Act was written, “national security was strictly the purview of the federal government.” But today, it says, the responsibility is now a whole-of-society effort.
“Today, foreign interference impacts every level of government and all sectors of society, including Canadian communities, academia, the media, and private enterprises. CSIS’s expertise and intelligence are increasingly relevant to those outside of the federal government, and these partners turn to CSIS more than ever for information.”
The service is also seeking the power to collect electronic and digital information located outside the country that is tied to an investigation of a foreign national residing in Canada.
CSIS is a domestic spy agency, but under Section 16 of its governing legislation it’s also authorized to collect intelligence within Canada that relates to the capabilities, intentions or activities of foreign states.
However, advances in technology have placed some of the information out of reach of CSIS. For instance, if the foreigners in Canada whom CSIS is tracking are leaving messages on voicemail and e-mail services where data is stored outside the country on servers, the agency is currently barred from collecting that information.
Section 16 of the CSIS Act contains the clauses that permit it, at the request of the foreign affairs minister or defence minister, to launch CSIS probes that can look at any foreigner, foreign corporation or foreign state “within Canada.”
But a 2018 Federal Court decision ruled that “within Canada” means CSIS can’t pursue digital evidence outside Canada in these cases.
Leah West, a former lawyer in the Department of Justice’s national-security division and now a Carleton University professor, said obtaining data from Google’s e-mail service, Gmail, is a good example.
“There’s no Google servers inside Canada,” she said. “So if you had a warrant to collect on diplomats of a certain country for a certain reason, but you needed to access their Gmail – because that’s what they were using – it’s not within Canada.”