Communications
Security
Establishment
Commissioner
A n n u a l R e p o rt
2 O12-2 O13
Office of the Communications Security
Establishment Commissioner
Website: www.ocsec-bccst.gc.ca
© Minister of Public Works and
Government Services 2013
Cat. No. D95-2013
ISSN 1206-7490
Cover design: Cameron Fraser
June 2013
Minister of National Defence
Dear Minister:
Pursuant to subsection 273.63(3) of the National Defence Act, I am pleased
to submit to you my annual report on my activities and findings for the period of
April 1, 2012, to March 31, 2013, for your submission to Parliament.
Communications Security
Establishment Commissioner
The Honourable Robert Décary, Q.C.
Commissaire du Centre de la
sécurité des télécommunications
L’honorable Robert Décary, c.r.
ANNUAL REPORT 2012–2013 • www.ocsec-bccst.gc.ca
TABLE OF CONTENTS
Biography of the Honourable Robert Décary, Q.C. /2
Commissioner’s Message: A Summary at the End of My Term /3
Mandate of the Communications Security Establishment Commissioner /9
Commissioner’s Office /15
Impact of Commissioners’ Recommendations /16
Overview of 2012–2013 Findings and Recommendations /17
Highlights of the Six Reviews Submitted to the Minister in 2012–2013 /20
1. Review of certain foreign signals intelligence activities /20
2. CSEC assistance to CSIS under part (c) of CSEC’s mandate and
sections 12 and 21 of the CSIS Act /21
3. Review of CSEC IT security activities not conducted under a ministerial
authorization /26
4. Review of CSEC’s 2010–2011 and 2011–2012 foreign signals intelligence
ministerial authorizations /29
5. Annual review of a sample of disclosures of Canadian identity information to
Government of Canada clients /32
6. Annual review of incidents and procedural errors identified by CSEC in 2012
that affected or had the potential to affect the privacy of Canadians and
measures taken by CSEC to address them /34
ANNUAL REPORT 2012–2013 • www.ocsec-bccst.gc.ca
Complaints About CSEC Activities /36
Duty Under the Security of Information Act /36
Activities of the Commissioner’s Office /36
Work Plan — Reviews Under Way and Planned /38
In Closing /39
Annex A: Commissioner’s Office Review Program — Logic Model /41
Annex B: Excerpts from the National Defence Act and the Security of Information Act
Related to the Commissioner’s Mandate /43
Annex C: 2012–2013 Statement of Expenditures /47
BIOGRAPHY OF THE HONOURABLE
ROBERT DÉCARY, Q.C.
The Honourable Robert Décary, Q.C., was appointed Commissioner of
the Communications Security Establishment on June 18, 2010, for a
three-year term.
Commissioner Décary was born in Montréal in 1944. He received his
education at Collège Jean-de-Brébeuf (BA), at Université de Montréal
(LL.L.) and the University of London (LL.M.). He was called to the
Barreau du Québec in 1967 and named Queen’s Counsel in 1986.
In the course of a career dedicated to public office, the law and
journalism, he was Special Assistant to the Honourable Mitchell Sharp
(then Canada’s Secretary of State for External Affairs) (1970–1973),
Co-Director for Research on the Task Force on Canadian Unity, the
Pepin-Robarts Commission (1978–1979) and member of the French
Constitutional Drafting Committee of the federal Department of Justice
(1985–1990).
He practised law in Montréal, then in Gatineau, where, in the firm Noël,
Décary, he specialized in representing many law offices and the
Attorney General of Québec before the Supreme Court of Canada.
He has written a number of feature articles for Le Devoir and
La Presse, and has contributed to many legal journals and textbooks.
He is the author of Aide-mémoire sur la Cour suprême du Canada
(1988) and of Chère Élize (or The Long and the Short History of the
Repatriation) (1983).
He was a member of the Federal Court of Appeal from 1990 to 2009. In
2009, he was appointed arbitrator of the Court of Arbitration for Sport
in Lausanne, Switzerland, and in 2010 he became a member of the
Sport Dispute Resolution Centre of Canada.
2 ANNUAL REPORT 2012–2013
COMMISSIONER’S MESSAGE: A SUMMARY AT
THE END OF MY TERM
When the Minister of National Defence tables this annual report before
Parliament, I will have completed my three-year term as
Communications Security Establishment (CSE) Commissioner. For
personal reasons I declined an offer to renew my mandate. This message
affords me an opportunity to reflect on my time as the head of
the Office of the CSE Commissioner.
Reports and recommendations
During my tenure as Commissioner I submitted to the Minister of
National Defence 19 review reports, covering almost every aspect of the
activities of Communications Security Establishment Canada (CSEC),
including those carried out under ministerial authorizations or at the
request of law enforcement and security agencies. Among the activities
reviewed were those relating to the collection of foreign signals
intelligence, the protection of electronic information and information
infrastructures considered important by the Government of Canada, and
technical and operational assistance provided by CSEC, notably to the
Canadian Security Intelligence Service (CSIS). My reports contained
12 recommendations.
The integrity of the review process and the credibility of the
Commissioner’s office depend in large part on the follow-up by the
office of CSEC’s implementation of Commissioners’ recommendations.
I am pleased to note that since 1997, fully 92 percent (127 of 138) of
Commissioners’ recommendations in 74 classified reports submitted to
the Minister have been accepted and implemented, or are being
addressed. This means, inter alia that measures to protect the privacy of
Canadians are continually being adapted and refined to reflect the everchanging
technological and operational environment in which CSEC
must work. Indeed, some Commissioners’ recommendations have
resulted in CSEC suspending certain activities to re-examine how the
activities are conducted and, in other instances, have led to important
improvements to CSEC policies and practices.
www.ocsec-bccst.gc.ca 3
Maintaining healthy relations with CSEC
It strikes me as vital that an organization under independent review and
the review body itself cultivate a relationship built on respect and good
faith. By law, CSEC must take measures to protect the privacy of
persons in Canada and Canadians, wherever in the world they may be.
By law, the Commissioner must ensure that CSEC meets this obligation.
The protection of privacy is therefore a shared objective of our two
organizations. I also consider it essential that our relationship be one of
complementarity rather than superiority. With my years of experience, I
see the office more as CSEC’s conscience than as a sword of Damocles,
and I believe that CSEC increasingly sees it this way as well.
I can say with confidence that CSEC’s Chiefs during my time as
Commissioner, John Adams initially and then John Forster, have spared
no effort to instill within CSEC a culture of respect for the law and for
the privacy of Canadians. Both men have been honest in their dealings
with me, sometimes tough, but always acting in good faith.
Transparency
From the start of my time as Commissioner, I have sought to demystify,
within the unavoidable constraints of national security and public safety,
the culture of secrecy pervading the activities of security and intelligence
agencies. I believe I have succeeded to some degree, based on the
feedback that my annual reports have been more informative, more
understandable, and have brought clarity to many of the activities of my
office and of CSEC. Much remains to be done, but I believe that the ice
has been broken and that the security and intelligence agencies
understand they can speak more openly about their work without
betraying state secrets or compromising national security. The greater
the transparency, the less sceptical and cynical the public will be.
4 ANNUAL REPORT 2012–2013
It is in this context of transparency that the Commissioner’s office
organizes periodic luncheon meetings with outside experts in the fields
of national security and privacy. This facilitates greater understanding on
their part of how we go about our work, and we in turn learn about their
perspectives and interests.
Review bodies working cooperatively
My office and the Security Intelligence Review Committee (SIRC) have
similar functions but are subject to different legislation. CSEC and CSIS
also have different legislation but their respective laws authorize
cooperation between them, whereas the legislation governing my office
and SIRC does not contain similar provisions. This means that where
CSEC and CSIS cooperate and conduct joint activities, my office and
SIRC do not have an equivalent authority to conduct joint reviews.
Nonetheless, I believe a certain amount of collaboration among review
bodies is possible under existing legislation. For example, where I have
no mandate to follow-up, I may refer questions to SIRC that concern
CSIS. Activities beyond this, such as the sharing of special operational
information of the agencies, may require the intervention and approval
of Cabinet, and possibly also legislative change. Ideally, the law should
authorize, even encourage, such cooperation.
The creation of an over-arching structure that would group existing
review bodies under a single umbrella, proposed in a past commission of
inquiry report, does not strike me as a sensible solution at this point.
Before we create an additional super-bureaucracy, with the associated
burden and costs, we may be better advised to optimize existing review
bodies and facilitate their collaboration.
www.ocsec-bccst.gc.ca 5
Another form of cooperation among security and intelligence review
bodies has occurred over the past few years. My office has provided an
introductory training course for new employees of security and
intelligence review bodies, to explain various review methods and to
contribute to the development of more rigorous review practices.
Information sharing with international partners
The growth of international cooperation in the intelligence field has
important implications for privacy. We want to ensure that the foreign
countries and organizations with which Canada exchanges information
protect privacy with as much rigour as Canada exercises. This is not an
easy task. On the one hand, nations are sovereign and do not appreciate
interference in their internal affairs, particularly not in the area of
security. On the other hand, review bodies and mechanisms vary from
country to country. In the absence of international intelligence review
standards, I believe the best guarantee of the protection of the privacy of
Canadians in information exchanged with international partners lies in
promoting and ensuring strong and independent review bodies in those
countries. We are, in fact, already doing this to some extent.
For the past 15 years, the review bodies of a dozen countries, including
members of the “Five-Eyes” countries (Canada, the United States,
the United Kingdom, Australia and New Zealand), have attended a
biennial conference. These meetings have been a source of rewarding
exchanges and new inspiration. The sharing of perspectives and best
practices is a stimulating and enriching experience. As well, countries
for which independent intelligence review is in its early stages may be
invited to attend the conferences as observers and gain knowledge
about what is happening elsewhere. Canada hosted this conference in
May 2012.
6 ANNUAL REPORT 2012–2013
On the bilateral level, my office meets with representatives of foreign
review bodies and oversight committees. This past year, for example, I
met with members of a delegation of French parliamentarians seeking
information on the nature and methodology of Canadian review bodies. I
have also met with members of the Belgian Standing Intelligence
Agencies Review Committee and the British Intelligence and Security
Committee. It is my wish that these kinds of beneficial meetings occur
more frequently.
Cyber security and cyber attacks
One can no longer talk about security without mentioning cyber threats.
Barely a week goes by without headlines dealing with the risk of
breaches of public and private computer systems. CSEC, by its very
mandate, is called on to play a leadership role in protecting electronic
information and information infrastructures of importance to the
Government of Canada. CSEC may also lend its experience to assist
Public Safety Canada in its role of helping to protect critical
infrastructure that may involve the private sector.
It is unavoidable that CSEC may unintentionally intercept the private
communications of Canadians while conducting certain information
technology (IT) security activities. For this reason, in recent years, the
Commissioner’s office has increased its vigilance in this area,
completing a number of reviews, while others have been initiated; I have
no doubt that my successor will continue this work.
Proposals for legislative changes to the National Defence Act
I started my mandate with the expectation that the legislative
amendments to the National Defence Act proposed by my predecessors
would soon be introduced in Parliament, but this has yet to happen. I
am deeply disappointed at the lack of action by the government, which
is no longer in a minority situation, to address the ambiguities identified
by my predecessors and myself. These amendments — as I have said
many times before — would improve the provisions that were hastily
www.ocsec-bccst.gc.ca 7
enacted in the aftermath of September 11, 2001. The proposals to
address the issues raised by Commissioners should not, in my opinion,
be controversial.
The independence of the Office of the CSE Commissioner
The office attained its institutional and financial independence just
over five years ago when it received its own funding approved by
Parliament, and was no longer part of the budget of the Department of
National Defence. To emphasize this independence, 2011 marked the
first time the Commissioner issued his own news release to highlight
the tabling in Parliament of his annual report by the Minister of
National Defence. Financial independence, however, does have its
drawbacks. As a result of having its own appropriation, the
Commissioner’s office, a micro-agency with a budget of roughly two
million dollars, is subject to the same accounting and reporting
requirements as all departments, each with their individual budgets,
some into the billions. To my mind, this is an example of excessive
bureaucracy that has resulted in a significant level of reporting that is
of limited value to both the office and its stakeholders.
8 ANNUAL REPORT 2012–2013
MANDATE OF THE COMMUNICATIONS SECURITY
ESTABLISHMENT COMMISSIONER
My mandate under the National Defence Act consists of three key
functions:
1. reviewing CSEC activities to determine whether they
comply with the law;
2. conducting investigations I deem necessary in response
to complaints about CSEC; and
3. informing the Minister of National Defence (who is
accountable to Parliament for CSEC) and the
Attorney General of Canada of any CSEC activities that
I believe may not be in compliance with the law.
Under the Security of Information Act, I also have a mandate to receive
information from persons who are permanently bound to secrecy if they
believe it is in the public interest to release special operational information
of CSEC. (More information on the Commissioner’s responsibilities for
public interest defence is available on the office’s website.)
www.ocsec-bccst.gc.ca 9
CSEC’s mandate
When the Anti-terrorism Act came into effect on December 24, 2001, it added
Part V.1 to the National Defence Act, and set out CSEC’s three-part mandate:
• part (a) authorizes CSEC to acquire and use foreign signals intelligence in
accordance with the Government of Canada’s intelligence priorities;
• part (b) authorizes CSEC to help protect electronic information and
information infrastructures of importance to the Government of Canada; and
• part (c) authorizes CSEC to provide technical and operational assistance
to federal law enforcement and security agencies, including helping them
obtain and understand communications collected under those agencies’
own lawful authorities.
Reviewing CSEC activities
My mandate to review CSEC activities relates to CSEC collecting
foreign signals intelligence, protecting electronic information and
information infrastructures of importance to the Government of Canada,
and assisting federal law enforcement and security agencies.
The purpose of my review mandate is:
• to determine whether the activities conducted by CSEC under
ministerial authorization are, in fact, those authorized by the
Minister of National Defence, and to verify that the conditions for
authorization required by the National Defence Act are met;
• to determine whether CSEC complies with the law and, if I
believe that it may not be complying, to report this to the
Minister of National Defence and to the Attorney General
of Canada;
• to verify that CSEC does not direct its foreign signals intelligence
and IT security activities at Canadians; and
• to promote the development and effective application of
satisfactory measures to protect the privacy of Canadians in all the
activities CSEC undertakes.
Ministerial authorizations
The National Defence Act allows the Minister of National Defence to
give CSEC written ministerial authorization to unintentionally intercept
private communications while collecting foreign signals intelligence or
10 ANNUAL REPORT 2012–2013
Protection of Canadians
CSEC is prohibited by law from directing its foreign signals intelligence
collection and IT security activities at Canadians — wherever they might be in
the world — or at any person in Canada.
while protecting computer systems of the Government of Canada from
mischief, unauthorized use or interference. In each case, the law
specifies the conditions under which a ministerial authorization can be
issued. Ministerial authorizations relate to an activity or class of
activities specified in the authorizations — that is, to a specific method
of acquiring foreign signals intelligence or of protecting computer
systems (the how); however the authorizations do not relate to a specific
individual or subject (the whom or the what). The law also directs the
CSE Commissioner to review activities carried out under a ministerial
authorization and to report annually to the Minister on the review. (More
information on ministerial authorizations as well as on the authorities for
and limitations on CSEC activities are available on the office’s website.)
Selection of activities for review
I use a risk-based and preventative approach to my reviews. I prioritize
CSEC activities where risk is greatest for potential non-compliance with
the law, including for risks to the privacy of Canadians, by considering,
among other factors:
• the controls placed by CSEC on the activity to ensure compliance
with legal, ministerial and policy requirements;
• whether the activity does, or has the potential to, involve private
communications or information about Canadians;
• whether the activity is new, has changed significantly, or has had a
lengthy period elapse since its last in-depth review;
• whether there have been significant changes to the authorities or
technologies relating to the activity;
• whether Commissioners have made findings or recommendations
relating to the activity that require follow-up; and
• issues arising in the public domain.
www.ocsec-bccst.gc.ca 11
Review methodology and criteria
My reviews of activities are ex post, that is, of activities that have
occurred in the past. However, reviews always include an examination
of CSEC’s ex ante reasons for conducting the activities — to confirm
that CSEC’s justifications for the activities are lawful and within
CSEC’s mandate. In conducting a review, my office examines CSEC’s
hard-copy and electronic information and records, as well as CSEC’s
policies and procedures and legal advice received from Justice Canada.
My employees request briefings and demonstrations of specific
activities, interview CSEC managers and employees, and observe CSEC
operators and analysts first hand to verify how they conduct their work.
My employees test information obtained against the contents of CSEC’s
systems and databases.
Each review includes an assessment of CSEC activities against a
standard set of criteria, described below, consisting of legal
requirements, ministerial requirements, and policies and procedures.
Each review may have additional criteria added, as appropriate.
Legal requirements: I expect CSEC to conduct its activities
in accordance with the National Defence Act,
the Canadian Charter of Rights and Freedoms, the Privacy Act,
the Criminal Code, and any other relevant legislation, and in
accordance with Justice Canada advice.
Ministerial requirements: I expect CSEC to conduct its
activities in accordance with ministerial direction, following all
requirements and limitations set out in a ministerial
authorization or directive.
12 ANNUAL REPORT 2012–2013
Information about Canadians: any personal information (as described in the
Privacy Act) about a Canadian, or business information about a Canadian
corporation.
Policies and procedures: I expect CSEC to have appropriate
policies and procedures in place to guide its activities and to
provide sufficient direction on legal and ministerial
requirements including the protection of the privacy of
Canadians. I expect CSEC employees to be knowledgeable
about and comply with policies and procedures. I also expect
CSEC to have an effective compliance validation framework
and activities to ensure the integrity of operational activities is
maintained, including appropriately accounting for important
decisions and information relating to compliance and the
protection of the privacy of Canadians.
My classified review reports document CSEC activities and practices
and contain findings relating to the above-noted criteria. These reports
may also disclose the nature and significance of deviations from the
criteria. In some cases, I make recommendations to the Minister that are
aimed at correcting discrepancies between CSEC activities and the
expectations established by the review criteria.
The logic model in Annex A provides a flow chart of the review
program (p. 41).
Horizontal reviews
Horizontal reviews examine processes common to all CSEC foreign
signals intelligence collection methods or to IT security activities.
For example, the processes by which CSEC:
• identifies, selects and directs its activities at foreign entities of
intelligence interest located outside Canada or at threats to
Government of Canada computer systems;
• uses, shares, reports, retains or disposes of intercepted
information; or
• takes measures to protect private communications intercepted
unintentionally and to protect information about Canadians.
www.ocsec-bccst.gc.ca 13
Conducting investigations
My mandate includes undertaking any investigation I deem necessary in
response to a written complaint — for example to determine whether
CSEC has engaged, or is engaging, in unlawful activity or is not taking
sufficient measures to protect the privacy of Canadians. (More
information on the Commissioner’s responsibilities for conducting
investigations into complaints is available on the office’s website.)
Informing the Minister
Under my mandate to keep the Minister of National Defence informed, I:
• forward the results of my reviews, in classified reports, to the
Minister; and
• submit an unclassified report to the Minister on my activities each
year, which the Minister must then table in Parliament. This is the
17th annual report.
While it is my primary duty to report any non-compliance by CSEC, a
necessary element of my mandate also includes informing the Minister
of any activities that I believe might present, or have the potential to
present, a risk of non-compliance, such as an unlawful interception of a
private communication or other invasion of the privacy of a Canadian.
A number of my reports have included recommendations aimed at
prevention. It is a goal of the Commissioner’s office to strengthen CSEC
practices that contribute to compliance and incorporate measures that
protect the privacy of Canadians.
Independence
While I submit my reports to the Minister of National Defence, who is
responsible for CSEC, my office is completely independent and receives
its own funding from Parliament. My mandate is supported by the
powers I have under the Inquiries Act, including the power of subpoena,
to ensure access to all CSEC information and employees.
14 ANNUAL REPORT 2012–2013
Annex B contains the text of the relevant sections of the
National Defence Act and the Security of Information Act relating to
my role and mandate as CSE Commissioner (p. 43). (Information on
the history of the Office of the CSE Commissioner is available on the
office’s website.)
COMMISSIONER’S OFFICE
Last year, work was completed on the expansion of the physical space of
the office, to provide sufficient accommodation for existing functions,
and for additional responsibilities resulting from the office receiving its
own appropriation from Parliament. The expansion will allow me to hire
two additional review officers to enable adequate review of CSEC,
which has experienced significant growth. I have been supported in my
work by a staff of eight, together with a number of subject-matter
experts, as required. In 2012–2013, my office’s expenditures were
$2,285,718, which is within the overall funding approved by Parliament.
Annex C provides the 2012–2013 Statement of Expenditures for the
Office of the CSE Commissioner (p. 47).
www.ocsec-bccst.gc.ca 15
CSE Commissioner
The Commissioner is an independent statutory officer and is not subject to
general direction from the Prime Minister, the Minister of National Defence or
any other ministers on how to carry out his mandate. The Commissioner assists
the Government of Canada in its control of CSEC by providing advice to the
Minister to support the Minister’s decision making and accountability for CSEC.
The Commissioner’s classified reports to the Minister and unclassified annual
report, through the Minister to Parliament and the public, state whether CSEC
has acted lawfully and the extent to which it protected the privacy of
Canadians in the conduct of its activities.
IMPACT OF COMMISSIONERS’
RECOMMENDATIONS
Since 1997, my predecessors and I have submitted to
the Minister of National Defence 74 classified review reports. In total,
the reports contained 138 recommendations. CSEC has accepted and
implemented or is working to address 92 percent (127 out of 138) of
these recommendations.
Commissioners monitor how CSEC addresses recommendations and
responds to negative findings as well as areas for follow-up identified in
past reviews. This past year, CSEC advised my office that work had
been completed in response to 14 past recommendations. Notably, CSEC
implemented recommendations by:
• providing support to the Minister of National Defence to update
certain ministerial directives;
• updating general memoranda of understanding for the exchange
of information and operational cooperation with CSIS and
Foreign Affairs and International Trade Canada;
• committing to report to the Minister of National Defence certain
information (that cannot be publicly identified for security
reasons), as a measure to protect the privacy of Canadians and to
support the Minister in his accountability for CSEC;
• promulgating a revised policy for operational assistance to law
enforcement and security agencies under part (c) of CSEC’s
mandate, including guidance on the retention and disposition of
records relating to any assistance;
• promulgating a revised procedure that defines risk and risk
mitigation for certain foreign signals intelligence collection
activities as well as adopting a risk management framework for
the planning and approval of these activities; and
16 ANNUAL REPORT 2012–2013
• launching a new secure system with other government
departments and agencies for handling and tracking requests for
and disclosures of suppressed Canadian identity information.
These actions by CSEC demonstrate that review works. The
Commissioner’s office will examine the impact of these enhancements
on compliance and privacy protection in future reviews. In addition, the
Commissioner’s office is monitoring six active recommendations that
CSEC is working to address. The Minister’s responses to two
recommendations of this year were not received by the time this report
was completed.
The office’s website provides a complete list of the 74 classified review
reports submitted to the Minister of National Defence.
OVERVIEW OF 2012–2013 FINDINGS AND
RECOMMENDATIONS
During the 2012–2013 reporting year, I submitted six reports to the
Minister of National Defence on my review of CSEC activities.
These reviews were conducted under two areas of my mandate:
• ensuring CSEC activities are in compliance with the law — as set
out in paragraph 273.63(2)(a) of the National Defence Act; and
• ensuring CSEC activities under a ministerial authorization are
authorized — as set out in subsection 273.65(8) of the
National Defence Act.
www.ocsec-bccst.gc.ca 17
The results
Each year, I provide an overall statement on my findings about the
lawfulness of CSEC activities. With the exception of one review
described below — in which I was unable to reach a definitive
conclusion about compliance or non-compliance with the law for certain
CSEC foreign signals intelligence activities — all of the activities of
CSEC reviewed this past year complied with the law.
As well, this year, I made four recommendations to promote
compliance with the law and to strengthen privacy protection. The
recommendations, which are described in the following review
summaries, relate to reinforcing policy guidance and expanding an
existing practice on privacy protection to other circumstances, as well
as providing the Federal Court of Canada with certain additional
evidence about the nature and extent of the assistance CSEC may
provide to CSIS.
Additionally, I forwarded to the Chair of SIRC, for information,
certain general points relating to CSIS that arose out of the
recommendations I made and that SIRC may wish to examine as it
deems appropriate. This demonstrates how existing review bodies
can, in the spirit of the recommendations of the commission of
inquiry led by the Honourable Justice Dennis O’Connor, collaborate
under existing legislation in the conduct of reviews of activities
involving more than one security and intelligence agency.
Two reviews this year — the review of certain foreign signals
intelligence activities and the review of CSEC assistance to CSIS
under part (c) of CSEC’s mandate and sections 12 and 21 of the
Canadian Security Intelligence Service Act (CSIS Act) — identified
the absence of certain historical information in a CSEC system and
database relating to foreign signals intelligence collection. This system
and database support the process by which CSEC determines that
entities of foreign intelligence interest are indeed foreign and located
18 ANNUAL REPORT 2012–2013
outside of Canada, as required by the National Defence Act. The
absence of the information limited my ability to assess the lawfulness
of the CSEC activities in question, and could also affect review of
other activities of CSEC. Due to the seriousness of this development,
I directed my employees to conduct an in-depth examination of the
issue to determine the implications and advise on a resolution. This
issue added to the time required to complete these two reviews. It is
encouraging that CSEC has already taken action and continues to do
so to ensure the availability of information that is required for
accountability and to demonstrate compliance with the law. The
Commissioner’s office will monitor developments.
In last year’s annual report, I expressed frustration about a reduction in
CSEC support to my office resulting in excessive delays in being able to
proceed with some reviews. CSEC has taken steps to correct this situation
and I am optimistic that these will result in a productive year ahead.
www.ocsec-bccst.gc.ca 19
HIGHLIGHTS OF THE SIX REVIEWS SUBMITTED TO
THE MINISTER IN 2012–2013
1. Review of certain foreign signals intelligence
activities
Background
I examined CSEC’s acquisition, use and exchange of information
relating to certain foreign intelligence activities that occurred a number
of years ago.
Findings and recommendations
I had no concern with respect to the majority of the CSEC activities
reviewed. However, a small number of records suggested the possibility
that some activities may have been directed at Canadians, contrary to
law. A number of CSEC records relating to these activities were unclear
or incomplete. After in-depth and lengthy review, I was unable to reach a
definitive conclusion about compliance or non-compliance with the law.
In the process of review, I found that a number of CSEC records relating
to exchanges of information with CSIS were sometimes unclear, which
led me to recommend that CSEC promulgate policy guidance respecting
how to clearly and consistently communicate with its partners about
what entity the activities are being directed at. As well, I recommended
that CSEC ensure that its foreign intelligence analysts are
knowledgeable about and follow existing policy guidance, introduced
since the period under review, respecting their responsibilities for
determining the foreign status of an entity and the justifications for
directing activities at that entity. Following the completion of my review,
I forwarded to the Chair of SIRC, for information, certain general points
relating to CSIS that arose out of the recommendations I made.
20 ANNUAL REPORT 2012–2013
At my direction, my office has started a review of other more recent
foreign intelligence activities that includes follow-up on matters raised
in this review, and will seek to determine whether developments in
CSEC policies and procedures since the period under review have led to
an improvement in the clarity of language in CSEC information
exchanges with CSIS.
Conclusion
As of the end of the 2012–2013 reporting period, March 31, 2013, I am
awaiting the Minister’s response to the two recommendations. The
responses will be noted in next year’s annual report.
2. CSEC assistance to CSIS under part (c) of
CSEC’s mandate and sections 12 and 21 of
the CSIS Act
Background
In 2007, CSIS sought from the Federal Court of Canada a warrant to
assist in the investigation of threat-related activities that, it was believed,
individuals would engage in while travelling outside of Canada. The
Honourable Justice Edmond Blanchard held that the Court lacked the
jurisdiction to authorize intrusive investigative activities by CSIS
employees outside of Canada (Re CSIS Act, 2008 FC 301).
In 2009, in X(Re), 2009 FC 1058, the Court was asked to revisit the
question of jurisdiction and to distinguish Justice Blanchard’s reasoning
on the basis of a more complete description of the facts relating to the
activities necessary to permit the interception and a different legal
argument concerning how the method of interception was relevant to the
jurisdiction of the Court. The Honourable Justice Richard Mosley was
satisfied that there were sufficient factual and legal grounds to
distinguish the application from that which was before Justice Blanchard
and he issued the first warrant permitting CSIS to intercept the
www.ocsec-bccst.gc.ca 21
communications of Canadians located outside Canada using the
interception capabilities of CSEC. The application was supported by the
affidavit evidence of an employee of CSEC that described the agency’s
interception capabilities and how communications would be intercepted
from within Canada.
Paragraph 273.64(1)(c) of the National Defence Act authorizes CSEC
to provide technical and operational assistance to federal law
enforcement and security agencies in the performance of their lawful
duties. This assistance includes CSEC supporting CSIS with the
interception of Canadians’ communications if CSIS has a judicially
authorized warrant issued under section 21 of the CSIS Act. Pursuant
to subsection 273.64(3) of the National Defence Act, CSEC is subject
to any limitations imposed by law on the agency to which it is
providing assistance — for example, any conditions imposed by a
judge in a warrant. When CSEC provides operational assistance to
CSIS, CSEC becomes the agent of CSIS. CSIS is de jure the owner of
the information and the intercepted communications relating to the
subject of the warrant.
In X(Re), Justice Mosley stated:
Canada has given CSE[C] a mandate to collect foreign
intelligence including information from communications and
information technology systems and networks abroad. It [CSEC]
is restricted as a matter of legislative policy from directing its
activities against Canadians or at any person within Canada, but
it is not constrained from providing assistance to security and
law enforcement agencies acting under lawful authority such as
a judicial warrant. CSIS is authorized to collect threat-related
information about Canadian persons and others and, as
discussed above, is not subject to territorial limitation.
Where the statutory prerequisites of a warrant are met, including
prior judicial review, reasonable grounds and particularization of
the targets, the collection of the information by CSIS with
22 ANNUAL REPORT 2012–2013
CSE[C] assistance, as proposed, falls within the legislative
scheme approved by Parliament and does not offend the Charter.
(X(Re) at paragraphs 75-76)
The objectives of my review were to acquire detailed knowledge of and
to document CSEC’s assistance to CSIS and to assess whether CSEC
activities complied with the law, including with the terms of the warrants
issued to CSIS, and any privacy protections found therein. CSEC’s
assistance to CSIS under the warrants may include use of Canadian
identity information and the interception of the communications of
Canadians. CSEC’s collection, as defined in the warrant, may impact on
the privacy of Canadians.
I examined CSEC assistance to CSIS in support of a number of the first
warrants of this kind relating to counter-terrorism. Specifically, as part
of assessing compliance with the law and privacy protection, for the
warrants examined, I verified that:
• CSEC had a copy of the warrant and had clear and sufficient
information about the assistance sought by CSIS;
• the communications targeted by CSEC for CSIS were only those
communications referred to in the warrants;
• the communications were not targeted before the warrants came
into force and were no longer targeted once the warrants expired;
• CSEC targeted the subjects of the warrants only while they were
believed to be outside Canada;
• CSEC targeted only the types of communications and information
that were authorized in the warrants to be intercepted or obtained; and
• CSEC complied with any other limitations imposed by law on
CSIS, for example, any conditions in the warrants.
www.ocsec-bccst.gc.ca 23
Findings and recommendations
During the period under review, CSEC responded appropriately to two
related privacy incidents it identified involving the unintentional release
of Canadian identity information of some of the subjects of the warrants.
In fact, CSEC has already clarified appropriate internal processes for the
conduct of certain activities and reminded its employees of their
information stewardship responsibilities. This should help prevent
similar incidents.
I questioned CSEC about another incident involving the interception of
communications for CSIS for a small number of days after a particular
warrant had expired. I accepted CSEC’s explanation for this incident,
which was that it resulted from unintentional human error. CSEC also
confirmed that these intercepted communications were destroyed and
that CSIS did not receive them. I am satisfied that CSEC documented
this incident and reminded its employees of proper process to help
prevent similar errors.
During the period under review, operational policies and procedures of
general application to CSEC’s assistance in support of these warrants
and related activities were in place and provided direction to CSEC
employees respecting compliance with the law and the protection of the
privacy of Canadians. Subsequent to the period under review, CSEC
issued specific guidance for the conduct of this assistance and activities.
Generally, CSEC employees interviewed were well aware of the policies
and procedures and demonstrated knowledge of their respective
responsibilities. Interviews with CSEC managers, team leaders and other
employees showed that managers routinely monitored the assistance and
related activities for compliance with governing authorities.
In addition to a detailed examination of CSEC activities under the
warrants, I considered and consulted my independent counsel, who is
also a privacy law expert, on general questions of law relating to this
subject. I made two recommendations to the Minister to help ensure
24 ANNUAL REPORT 2012–2013
CSEC assistance to CSIS is consistent with the authorities and
limitations of the warrants, and to enhance the measures in place to
protect the privacy of Canadians. Specifically, I recommended that:
1. CSEC discuss with CSIS the expansion of an existing
practice to protect privacy to other circumstances; and
2. CSEC advise CSIS to provide the Federal Court of Canada
with certain additional evidence about the nature and extent
of the assistance CSEC may provide to CSIS.
I found that CSEC practices relating to its assistance to CSIS and related
activities were consistent with the general requirements in the
“Accountability Framework” and “Privacy of Canadians” ministerial
directives to CSEC, specifically to comply with the law and to take
measures to ensure that information was lawfully obtained and handled
in a manner consistent with the Canadian Charter of Rights and
Freedoms and the Privacy Act.
Conclusion
While I made two recommendations to the Minister to help ensure
CSEC assistance to CSIS is consistent with the law and to enhance
privacy protection, I concluded that CSEC conducted its activities in
accordance with the law and ministerial direction, and in a manner that
included measures to protect the privacy of Canadians. The Minister
accepted and CSEC has addressed the recommendations.
Following the completion of my review, I forwarded to the SIRC Chair,
for information, certain general points relating to CSIS that arose out of
the two recommendations I made and that SIRC may wish to examine as
it deems appropriate. Subsequently, CSEC advised me that it raised the
recommendations — which relate to matters that are controlled by CSIS,
or require agreement from CSIS — with CSIS.
www.ocsec-bccst.gc.ca 25
3. Review of CSEC IT security activities not
conducted under a ministerial authorization
Background
The National Defence Act mandates CSEC to provide advice, guidance
and services to Government of Canada departments and agencies as well
as to other owners of IT systems to help ensure the protection of
electronic information and of information infrastructures of importance
to the Government of Canada (paragraph 273.64(1)(b)).
During the period under review, the Government of Canada reorganized
its cyber defence efforts. CSEC became the primary point of contact for
cyber incidents faced by Government of Canada departments and
agencies. Public Safety Canada is the primary point of contact for cyber
incidents affecting non-Government of Canada critical infrastructure
sectors. A further distinction is that CSEC is responsible for
sophisticated cyber threats, such as those stemming from foreign state
actors, while Public Safety Canada responds to less sophisticated threats,
for example, those relating to known vulnerabilities in commercially
available computer software.
I examined certain IT security activities conducted by CSEC to detect,
analyse and mitigate cyber threats. CSEC does not undertake these
activities under a ministerial authorization as it does not intercept
communications. Rather, CSEC uses information acquired by the system
owners — under their Criminal Code authorities and, for Government of
Canada system owners, also under their Financial Administration Act
authorities — and disclosed to CSEC. These authorities permit the
interception of private communications by authorized persons when the
interception is reasonably necessary to protect computer systems from
mischief and unauthorized use.
26 ANNUAL REPORT 2012–2013
The objectives of my review were to assess whether CSEC complied
with the law and the extent to which CSEC protected the privacy of
Canadians in carrying out the activities. In addition to acquiring detailed
knowledge about the activities, I examined:
• the legislative and policy framework for the activities;
• CSEC organizational changes;
• technologies, databases and systems used for the activities;
• the amount and treatment of private communications and
Canadian identity information acquired by the activities as well as
a sample of those private communications and Canadian identity
information used by CSEC; and
• agreements in place with Government of Canada departments and
agencies.
I examined activities conducted between April 1, 2009, and
March 31, 2011, including a more detailed examination of activities
and associated reporting for a number of the departments and agencies
assisted by CSEC during that time. Additionally, records were examined
to verify that system owner information retained by CSEC was done so
under an appropriate legal authority. My review also included an
examination of CSEC’s responses to areas for follow-up identified in a
2009 study by former Commissioner Gonthier.
www.ocsec-bccst.gc.ca 27
Private Communication: “any oral communication, or any
telecommunication, that is made by an originator who is in Canada or is
intended by the originator to be received by a person who is in Canada
and that is made under circumstances in which it is reasonable for the
originator to expect that it will not be intercepted by any person other than
the person intended by the originator to receive it, and includes any radiobased
telephone communication that is treated electronically or otherwise
for the purpose of preventing intelligible reception by any person other than
the person intended by the originator to receive it” (section 183 of the
Criminal Code).
Findings
I found that CSEC conducted its activities in accordance with the law
and ministerial direction and I had no questions about the reporting and
retained information examined.
I suggested that CSEC could enhanse its ability to demonstrate that it
has measures to protect the privacy of Canadians by recording the return
or deletion of irrelevant information acquired by a system owner and
shared with CSEC. Notwithstanding this suggestion, I found that these
IT security activities contained satisfactory measures to protect the
privacy of Canadians.
During the period under review, operational policies and procedures
of general application were in place to provide general direction
respecting compliance with the law and the protection of privacy of
Canadians. However, there was no specific operational guidance in
place for these activities. It is a positive development that, subsequent
to the period under review, CSEC issued a specific policy for the
conduct of these activities.
Some CSEC employees who were interviewed were unable to cite
certain policies, but were aware of the rules governing their activities. In
addition, CSEC managers who were interviewed routinely and closely
monitored the activities to ensure that their employees complied with
governing authorities. Based on the records examined, the answers
provided to questions during interviews and CSEC’s policy compliance
validation activities, the activities reviewed complied with relevant
policies and procedures.
Conclusion
My review report contained no recommendations. However, regular indepth
reviews will continue to be conducted of IT security activities not
conducted under a ministerial authorization to verify compliance with
the law, and the extent to which CSEC protects the privacy of Canadians
in carrying out the activities.
28 ANNUAL REPORT 2012–2013
4. Review of CSEC’s 2010–2011 and 2011–2012
foreign signals intelligence ministerial
authorizations
Background
Subsection 273.65(8) of the National Defence Act requires the
Commissioner to review CSEC activities carried out under ministerial
authorizations “to ensure they are authorized and report annually to the
Minister [of National Defence] on the review.” A regular combined
review of the foreign signals intelligence ministerial authorizations is
one way that Commissioners fulfill this part of their mandate. This
year’s review covered two fiscal years: I examined the five foreign
signals intelligence ministerial authorizations in effect from
December 1, 2010, to November 30, 2011, relating to five activities
or classes of activities, as well as the six foreign signals intelligence
ministerial authorizations in effect from December 1, 2011, to
November 30, 2012, relating to six activities or classes of activities.
The purpose of this review was to:
1. ensure that the activities conducted under the ministerial
authorizations were authorized and that the Minister
was satisfied that the four conditions for authorization
required by paragraphs 273.65(2)(a) to (d) of the
National Defence Act were met;
2. identify any significant changes to the ministerial
authorization documents themselves or to CSEC’s
activities described in the ministerial authorizations;
3. assess the impact, if any, of these changes on the risk of
non-compliance and on the risk to privacy, and, as a result,
identify any subjects requiring follow-up review; and
www.ocsec-bccst.gc.ca 29
4. examine, for compliance with the law, a sample of my
choosing of any resulting private communications
unintentionally intercepted by CSEC while conducting
foreign signals intelligence collection activities under the
ministerial authorizations.
Findings
I found that the activities conducted under the 2010–2011 and the
2011–2012 foreign signals intelligence ministerial authorizations were
authorized.
For each of the 11 foreign signals intelligence collection activities, I
examined certain key information relating to interception and to the
privacy of Canadians, to permit comparison of the activities and to
identify any significant changes or trends over time. I found no
significant changes to the scope or operation of any of the activities to
require a follow-up in-depth review of specific activities. The
2010–2011 and 2011–2012 foreign signals intelligence ministerial
authorizations did not contain any significant changes from the previous
year and CSEC did not make any significant changes to the technologies
used for these activities.
Changes made by CSEC in 2010–2011 and in 2011–2012 to its
operational policies for foreign signals intelligence collection activities
clarified authorities and practices and enhanced the protection of the
privacy of Canadians.
30 ANNUAL REPORT 2012–2013
Private communications
The Commissioner monitors the number of private communications
unintentionally intercepted and verifies how CSEC treated and used these
communications. The Commissioner is able to review all of the private
communications that CSEC uses and retains.
I also reviewed a sample of unintentionally intercepted private
communications that CSEC recognized and retained, and that CSEC
did not use in its reports. I found that in both 2010–2011 and
2011–2012, CSEC retained only those private communications
essential to international affairs, defence or security, as required by
paragraph 273.65(2)(d) of the National Defence Act. Again this year,
the proportion of these communications remained very small and
CSEC destroyed most of them. In addition, a new tool is being
developed that will assist CSEC analysts in identifying intercepted
communications that might be private communications. The
Commissioner’s office will examine the impact of this new tool on
compliance and privacy protection in a future review.
In last year’s report, I indicated that certain information about
intercepted communications involving CSEC’s international partners
was not readily available. It is positive that, while not a requirement in
the ministerial authorizations, CSEC has recognized the importance of
reporting this information to the Minister. The Commissioner’s office
will monitor developments.
It is also a positive development that, while not a requirement of a
particular ministerial authorization, CSEC has agreed to report to the
Minister certain information relating to privacy. This measure to protect
the privacy of Canadians will support the Minister in his accountability
for CSEC. It also satisfies an outstanding recommendation I made in
2010–2011. The Minister had initially supported CSEC’s rejection of
this recommendation. However, after further examination, I maintained
my recommendation and so informed the Minister. CSEC reconsidered
its initial position and advised the Minister that it would undertake to
implement the recommendation.
Conclusion
I made no recommendations.
www.ocsec-bccst.gc.ca 31
5. Annual review of a sample of disclosures
of Canadian identity information to
Government of Canada clients
Background
Canadian identity information may be included in CSEC’s foreign
signals intelligence reports if it is required to understand or use the
foreign intelligence. However, any information that identifies a
Canadian must be suppressed in the reports — that is, replaced by a
generic reference such as “a named Canadian.” When receiving a
subsequent request for disclosure of the details of the suppressed
information, CSEC must verify that the requesting client has both the
authority and operational justification for obtaining the Canadian
identity information. Only then may CSEC provide that information.
My officials selected and examined a sample of approximately 20 percent
of the total number of disclosures by CSEC to Government of Canada
agencies or departments during the period October 2011 to June 2012.
The sample included disclosures made to all of the departments that had
requested Canadian identity information during the period under review.
My officials examined: the requests documenting the clients’ authority and
justification for obtaining the Canadian identity information; associated
CSEC foreign signals intelligence reports; and the actual disclosures of
Canadian identity information.
Findings
Based on my assessment of the information reviewed and the interviews
conducted, CSEC conducted its disclosure activities in compliance with
the law. Operational policies and procedures are in place and provide
sufficient direction to CSEC employees respecting the protection of the
privacy of Canadians. CSEC employees were knowledgeable about, and
acted in accordance with, the policies and procedures.
32 ANNUAL REPORT 2012–2013
In addition, in response to a recommendation made by former
Commissioner Cory in his 2010 report, in 2012, CSEC started using a
new on-line secure system to process requests for and disclosures of
Canadian identity information. CSEC provided my employees with a
demonstration of the system, which is currently used with CSEC’s
principal clients. CSEC intends to extend its use to other partners
starting in the coming fiscal year. According to CSEC, the system has
improved the timeliness of responses and resulted in better service to
its clients. It enhances accountability by improving the tracking and
retrieval of requests for and disclosures of Canadian identity
information and it contains a number of features to help ensure the
protection of the privacy of Canadians.
Conclusion
My review did not result in any recommendations. CSEC conducted its
disclosure activities in a thorough manner; all of the requests reviewed
were authorized, justified and well documented.
Should there be an instance of non-compliance in CSEC disclosure of
Canadian identity information, the potential impact on the privacy of
Canadians could be significant. For this reason, annual reviews of a
sample of disclosures will continue. Next year’s sample will include a
detailed examination of the use of the new system, as well as a sample
of disclosures of Canadian identity information to CSEC’s
international partners.
www.ocsec-bccst.gc.ca 33
6. Annual review of incidents and procedural
errors identified by CSEC in 2012 that
affected or had the potential to affect the
privacy of Canadians and measures taken
by CSEC to address them
Background
CSEC maintains a central file describing any operational incidents
that did or could have an impact on the privacy of Canadians. CSEC
records in this file any incidents it identifies that put at risk the
privacy of a Canadian in a manner that runs counter to or is not
provided for in its operational policies. CSEC policy requires its
foreign signals intelligence and IT security employees to report and
document privacy incidents in order to demonstrate compliance with
legal requirements and CSEC policies, and to prevent further
incidents. Incidents could include, for example, the inadvertent
inclusion of Canadian identity information in a report, or mistakenly
sharing a report with the wrong recipient.
Horizontal and in-depth reviews of CSEC activities include an
examination of any privacy incidents and procedural errors relating to
the subject under review and, where appropriate, are reported in the
summaries of those reviews. My employees are vigilant during reviews
about identifying these types of incidents, so we can confirm whether
CSEC also identified and addressed them.
The objectives of this annual review are to: acquire knowledge of the
incidents and procedural errors in 2012 and associated actions; and
inform development of the Commissioner’s work plan, by determining if
there are any systemic issues or issues about compliance with the law or
the protection of the privacy of Canadians that should be the subject of
follow-up review. The review of these privacy incidents and procedural
errors also assists in evaluating how CSEC monitors and validates that
its activities adhere to its operational policies.
34 ANNUAL REPORT 2012–2013
Findings
I examined all foreign signals intelligence and IT security privacy
incidents and procedural errors recorded by CSEC in calendar year
2012, and the subsequent actions taken by CSEC to correct them.
There was a very small number of procedural errors and I agreed with
CSEC’s assessment that these occurrences were minor and did not
amount to privacy incidents.
Based my review of CSEC’s records as well as independent verification
by my office of reports in a CSEC database, I am satisfied that CSEC
took appropriate corrective actions in response to the small number of
privacy incidents it recorded.
I was particularly pleased with certain remedial actions taken by CSEC
to prevent future similar privacy incidents. For example, CSEC is now
conducting a monthly review of its central file to ensure that all required
remedial activities have been completed or are being pursued. As well,
CSEC reminded its employees of the requirement to report an incident
immediately. CSEC also established a process to send reminders to its
employees to make sure that certain information in its systems is up to
date and compliant with existing authorities.
Conclusion
My review of the privacy incidents and procedural errors identified by
CSEC in 2012 did not result in any recommendations. My review did
not reveal any systemic deficiencies or issues that require follow-up
review. Annual reviews will continue to be conducted of the privacy
incidents and procedural errors identified by CSEC.
www.ocsec-bccst.gc.ca 35
COMPLAINTS ABOUT CSEC ACTIVITIES
In 2012–2013, my office was contacted by a number of individuals who
were seeking information or expressing concern about CSEC activities.
However, the inquiries were assessed as outside of the Commissioner’s
mandate or as lacking credibility. No complaints about CSEC activities
warranted investigation by the Commissioner. (More information on the
complaints process is available on the office’s website.)
DUTY UNDER THE SECURITY OF INFORMATION ACT
I have a duty under the Security of Information Act to receive
information from persons who are permanently bound to secrecy seeking
to defend the release of special operational information — such as
certain information relating to CSEC activities — on the grounds that it
is in the public interest. No such matters were reported to me in
2012–2013. (More information on the Commissioner’s responsibilities
under the Security of Information Act is available on the office’s website.)
ACTIVITIES OF THE COMMISSIONER’S OFFICE
In last year’s annual report, in an attempt to clarify misconceptions and to
better inform the public about CSEC’s and my mandates and activities, I
provided more detail than ever before on CSEC’s activities, what
Commissioners review, how reviews are carried out, and the impact of
reviews. Work is ongoing to improve the website, which contains detailed
information on the activities of the Commissioner’s office. Of course, the
Commissioner provides the Minister of National Defence with additional
classified information — which cannot be disclosed in this public report
or on the website — so that the Minister can be fully aware of the
Commissioner’s review of CSEC activities. Last year, employees of my
office and I also met with a number of academics and other professionals
interested in review of security and intelligence agencies to talk about my
role and work and their views on effective review. In addition, my office
made presentations to five cohorts of new CSEC employees attending
36 ANNUAL REPORT 2012–2013
CSEC’s foundational learning course, which is a requirement for every
new employee. These presentations provide an introduction to what it is I
and my office do, how we go about our work, and how it may affect them
as CSEC employees.
During the past year, CSEC provided a number of detailed briefings to
employees of my office as part of the conduct of reviews. CSEC also
provided an overview briefing on recent and important operational,
policy and organizational changes and issues. I attended an interactive
presentation that demonstrated CSEC’s foreign signals intelligence
capabilities and response to an incident. The event was very effective in
demonstrating how the many different parts of CSEC, many personnel
and many different government departments and agencies cooperate, in
response to a top Government of Canada priority. I was struck by the
knowledge and professionalism of CSEC employees and their evident
dedication to their respective responsibilities. In addition, my employees
attended CSEC training on foreign signals intelligence activities and on
communications security.
Following a conference on security and privacy at the Université de
Montréal in October 2011, my office’s Executive Director wrote a
chapter in a book, Circulation internationale de l’information et sécurité,
published in late 2012. The chapter was based on his participation in
one of the conference panels, describing distinctions between national
security and public safety, the role and impact of review, and the
integration of technology and privacy protection in national security.
At the beginning of March, the Executive Director delivered a luncheon
address at the 15th annual conference organized by the Centre for Military
and Strategic Studies at the University of Calgary, with the theme Global
Security: Past, Present and Future. His address dealt with the role of
intelligence review, focussing on four questions: why is review
important; how effective can it be and what makes for effective review;
what is the view of the intelligence agencies themselves concerning
review; and what of the future and some challenges.
www.ocsec-bccst.gc.ca 37
WORK PLAN — REVIEWS UNDER WAY AND
PLANNED
Commissioners use a risk-based and preventative approach to reviews.
A three-year work plan is updated twice a year. Developing the work
plan draws on many sources. Two important ones are regular briefings
from CSEC on new activities and changes to existing activities, and
the Chief of CSEC’s classified annual reports to the Minister of
National Defence on CSEC’s priorities and legal, policy and management
issues of significance.
The results of several reviews currently under way are expected to be
reported to the Minister of National Defence in the coming year and
included in my successor’s 2013–2014 annual report. The subjects of
these reviews include: CSEC counter-terrorism activities; a follow-up to
this year’s review of certain foreign signals intelligence activities;
CSEC’s policy compliance validation framework and activities; and a
review of particular signals intelligence collection activities conducted
under ministerial authorizations.
In addition, before the end of my term as Commissioner, I will report to
the Minister on my ongoing review of CSEC’s foreign signals intelligence
sharing with its closest international partners — the United States’
National Security Agency, the United Kingdom’s Government
Communications Headquarters, the Australian Defence Signals
Directorate and the New Zealand Government Communications Security
Bureau. CSEC and its international partners respect each other’s laws by
pledging not to direct collection activities at one another’s citizens’
communications. CSEC is prohibited from requesting an international
partner to undertake activities that CSEC itself is legally prohibited from
conducting. However, CSEC sharing information with its international
partners could affect a Canadian; it is in the international sharing of
personal information where the risks are higher than for sharing involving
domestic partners. My 2011–2012 annual report contained an update on
38 ANNUAL REPORT 2012–2013
this review. This year, I continued my in-depth review and consulted my
independent counsel on general questions of law relating to this subject.
Some of the reviews planned for 2013–2014, which may carry over to
the next year, are: a review of CSEC IT security activities conducted
under ministerial authorizations in support of Government of Canada
efforts to address cyber threats; a follow-up review of CSEC activities
carried out under a ministerial directive for the purposes of identifying
new foreign entities believed to be of foreign intelligence interest; and a
follow-up review of CSEC efforts to address numerous gaps related to
CSEC’s dealings with the Canadian Armed Forces, as identified by
CSEC internal evaluators. In addition, the office plans to continue the
annual reviews of: (1) foreign signals intelligence ministerial
authorizations; (2) CSEC disclosures of Canadian identity information;
and (3) privacy incidents and procedural errors identified by CSEC and
the measures subsequently taken by CSEC to address them. The office
will work with my successor to put in place a comprehensive work plan
soon after his or her appointment.
IN CLOSING
The position of Commissioner is a legislated part of how the government
decided, in enacting the National Defence Act, to strike a balance
between — on the one hand — the Government of Canada’s need for
foreign signals intelligence and IT security services, and — on the other
hand — the need to protect the privacy of Canadians.
The role of the Commissioner and the Commissioner’s office is to be
sceptical and critical of CSEC activities and it is natural that our
respective organizations may sometimes disagree. However, we have a
shared objective with CSEC, which is to ensure CSEC complies with the
law and protects the privacy of Canadians in the conduct of its activities.
www.ocsec-bccst.gc.ca 39
The fulfillment of the Commissioner’s mandate rests on the integrity of
the office, its ability to effect change at CSEC and inspire confidence in
the public that CSEC is under rigorous review.
Finally, I thank the staff of my office, whose dedication, enthusiasm,
teamwork, rigour and sense of duty have been nothing short of
remarkable these past three years. I can say with pride and confidence
that CSEC is truly being watched.
40 ANNUAL REPORT 2012–2013
ANNEX A: COMMISSIONER’S OFFICE REVIEW PROGRAM —
LOGIC MODEL
www.ocsec-bccst.gc.ca 41
Plan, conduct and report on reviews
and studies of CSEC’s activities
Reports to Minister of
National Defence
and CSEC
- assurance
- information
- findings
- recommendations
CSEC accepts and
implements advice and
recommendations
Government and public confidence in the
lawfulness of CSEC’s activities
Notifications to Minister
of National Defence and
Attorney General of any
CSEC activity that may
not be in compliance with
the law
Annual reports to
Minister of National
Defence for tabling
in Parliament:
- assurance
- information
Support for
Minister of National
Defence in his/her
accountability for
CSEC
CSEC activities based
on sound policies,
procedures and
practices
Low CSEC susceptibility to, and
incidence of, lack of compliance
with the law; high level of
safeguarding privacy
OUTCOMES OUTPUTS ACTIVITIES
(Final) (Intermediate) (Immediate)
ANNEX B: EXCERPTS FROM THE NATIONAL DEFENCE ACT
AND THE SECURITY OF INFORMATION ACT RELATED TO THE
COMMISSIONER’S MANDATE
National Defence Act — Part V.1
Appointment of Commissioner
273.63 (1) The Governor in Council may appoint a supernumerary judge or a retired
judge of a superior court as Commissioner of the Communications Security
Establishment to hold office, during good behaviour, for a term of not more
than five years.
Duties
(2) The duties of the Commissioner are
(a) to review the activities of the Establishment to ensure that they are in
compliance with the law;
(b) in response to a complaint, to undertake any investigation that the
Commissioner considers necessary; and
(c) to inform the Minister and the Attorney General of Canada of any
activity of the Establishment that the Commissioner believes may not be
in compliance with the law.
Annual report
(3) The Commissioner shall, within 90 days after the end of each fiscal year,
submit an annual report to the Minister on the Commissioner’s activities and
findings, and the Minister shall cause a copy of the report to be laid before
each House of Parliament on any of the first 15 days on which that House is
sitting after the Minister receives the report.
ANNUAL REPORT 2012–2013 • www.ocsec-bccst.gc.ca 43
Powers of investigation
(4) In carrying out his or her duties, the Commissioner has all the powers of a
commissioner under Part II of the Inquiries Act.
Employment of legal counsel, advisors, etc.
(5) The Commissioner may engage the services of such legal counsel, technical
advisers and assistants as the Commissioner considers necessary for the
proper performance of his or her duties and, with the approval of the
Treasury Board, may fix and pay their remuneration and expenses.
Directions
(6) The Commissioner shall carry out such duties and functions as are assigned
to the Commissioner by this Part or any other Act of Parliament, and may
carry out or engage in such other related assignments or activities as may be
authorized by the Governor in Council.
[...]
Review of authorizations
273.65 (8) The Commissioner of the Communications Security Establishment shall review
activities carried out under an authorization issued under this section to ensure
that they are authorized and report annually to the Minister on the review.
44 ANNUAL REPORT 2012–2013
Security of Information Act
Public interest defence
15. (1) No person is guilty of an offence under section 13 or 14 if the person establishes
that he or she acted in the public interest. [...]
Prior disclosure to authorities necessary
(5) A judge or court may decide whether the public interest in the disclosure
outweighs the public interest in non-disclosure only if the person has complied
with the following: [...]
(b) the person has, if he or she has not received a response from the deputy head
or the Deputy Attorney General of Canada, as the case may be, within a
reasonable time, brought his or her concern to, and provided all relevant
information in the person’s possession to, [...]
(ii) the Communications Security Establishment Commissioner, if the
person’s concern relates to an alleged offence that has been, is being or
is about to be committed by a member of the Communications Security
Establishment, in the purported performance of that person’s duties and
functions of service for, or on behalf of, the Communications Security
Establishment, and he or she has not received a response from the
Communications Security Establishment Commissioner within a
reasonable time.
www.ocsec-bccst.gc.ca 45
46 ANNUAL REPORT 2012–2013 • www.ocsec-bccst.gc.ca
ANNEX C: 2012–2013 STATEMENT OF EXPENDITURES
Standard Object Summary ($)
Salaries and Benefits 907,567
Transportation and Telecommunications 15,412
Information 59,131
Professional and Special Services 305,572
Rentals 217,803
Repairs and Maintenance 1,515
Material and Supplies 10,383
Machinery and Equipment 16,985
Capital Assets, including Leasehold Improvements 751,350
Total 2,285,718
