Analysis of the Communications Security Establishment Act and Related Provisions in Bill C-59 (an Act Respecting National Security Matters), First Reading

Transparency and Accountability, December 2017

90 Pages Posted: 22 Jan 2018  

Christopher A. Parsons

University of Toronto, Munk School of Global Affairs, Citizen Lab

Lex Gill

University of Toronto, Munk School of Global Affairs, Citizen Lab

Tamir Israel

University of Ottawa - Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic (CIPPIC)

Bill Robinson

University of Toronto, Munk School of Global Affairs, Citizen Lab

Ronald J. Deibert

University of Toronto - Munk Centre for International Studies

Date Written: December 18, 2017

Abstract

This report contributes to the ongoing national security debate in Canada by providing an analysis of the proposed Communications Security Establishment Act, a major component of the reforms set out by the Government of Canada in Bill C-59 (An Act respecting national security matters). The proposed CSE Act will furnish Canada's foreign signals intelligence agency with a comprehensive new legal framework.

In the course of this analysis, we summarize the CSE's proposed mandate, activities, operations, and powers, with an emphasis on their potential implications for human rights and global security. We undertake a detailed analysis of key issues related to the CSE arising from Bill C-59, including a study of the Establishment's changing mandate; problems of review, oversight, and independent control; exceptions to the general rule against "directing" activities at Canadians and persons in Canada; tensions between aspects of the mandate; the need for a formal vulnerabilities equities process; and issues arising from "arrangements" with foreign and international bodies.

We also offer a series of over 50 recommendations which, if adopted, would provide a more legally sound framework for the CSE, better protect global security interests in a rapidly changing technological environment, and more effectively account for Canada's domestic and international human rights obligations. In particular, we make recommendations to improve systems of review, oversight, and control of the CSE and to constrain the CSE's ability to engage in activities that are problematic, abusive, unconstitutional, or in violation of international human rights norms.

Keywords: Communications Security Establishment, National Security, National Security Law, Human Rights, Cybersecurity, Cyber Security, Signals Intelligence, Cyber Operations, CNE, CNA, Canada, Canadian Law, Security Studies, Surveillance, Privacy

Suggested Citation

Parsons, Christopher A. and Gill, Lex and Israel, Tamir and Robinson, Bill and Deibert, Ronald J., Analysis of the Communications Security Establishment Act and Related Provisions in Bill C-59 (an Act Respecting National Security Matters), First Reading (December 18, 2017). Transparency and Accountability, December 2017. Available at SSRN: https://ssrn.com/abstract=3101557 or http://dx.doi.org/10.2139/ssrn.3101557

Christopher A. Parsons

University of Toronto, Munk School of Global Affairs, Citizen Lab ( email )

Toronto, Ontario
Canada

Lex Gill (Contact Author)

University of Toronto, Munk School of Global Affairs, Citizen Lab ( email )

Toronto, Ontario
Canada

Tamir Israel

University of Ottawa - Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic (CIPPIC) ( email )

University of Ottawa Faculty of Law - Common Law
57 Louis Pasteur St.
Ottawa, Ontario K1N 6N5
Canada

Bill Robinson

University of Toronto, Munk School of Global Affairs, Citizen Lab ( email )

Toronto, Ontario
Canada

Ronald J. Deibert

University of Toronto - Munk Centre for International Studies ( email )

Toronto, Ontario M5S 3E6 M5S 3G8
Canada

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