Spy services granted new power – Federal Court decision paves way for the internation

[Berry lee]

Canada’s spy services have a new power: the ability to listen in on “homegrown” Canadian suspects travelling abroad to terrorism hot-spots such as Somalia,Pakistan and Afghanistan.

In a Federal Court decision released today, Mr. Justice Richard Mosley decided the court can sign off on domestic warrants that allow for the international surveillance of Canadian citizens suspected of links to terrorism.

These warrants would be used for intelligence gathering, not necessarily for criminal prosecutions in open court.

The application came as Canadian spies sought “urgent” permission in January to follow two unidentified Canadians, presumably terrorism suspects, travelling to an unidentified country from Canada. These travels “pertained to threat activities which, it was believed, the two individuals would engage in while travelling outside of Canada,” reads today’s ruling.

“Individuals who pose a threat to the security of Canada may move easily and rapidly from one country to another and maintain lines of communication with others of like mind,” Judge Mosley said. “Information which may be crucial to prevent or disrupt the threats may be unavailable to the security agencies of this country if they lack the means to follow those lines of communication.”

Federal spy masters had been seeking the authority for years, amid complaints that Canada’s Cold War-era laws failed to address the threat of alleged Canadian terrorists who travel outside the country.

The specific problem? The Canadian Security Intelligence Service, the country’s “human intelligence” spies, can get wiretaps only for use in Canada if a judge signs off on a warrant. The Communications Security Establishment, the country’s secretive “signals intelligence” agency, has the technological ability to listen to anyone it wants, anywhere in the world, but it is legally banned from spying within Canada or on Canadian citizens, wherever they may be.

It was illegal for Canada’s spies to listen in on Canadian terrorism suspects the moment they left the country. This left intelligence officials complaining their investigations could suddenly go dark.

In the past, bureaucrats and judges had difficulty with the CSIS argument that it should be allowed to deputize the international powers of the CSE to advance domestic investigations. Judges maintained they enforced Canadian laws and had no power to sign off on arguably illegal or “extra legal” spying in other countries.

Judge Mosley has authored a compromise: He and his colleagues will sign off on such warrants provided the “international” spying actually takes place within Canada.

This essentially means the CSE can listen in on international conversations involving Canadian suspects via satellite signals and data lines that can be intercepted from Canada.

From there, powerful algorithms and search engines can seek to isolate the “Canadian” conversations.

“It recognizes that security threats are global and highly mobile. CSIS can now use this tool to defend Canada’s security,” said Manon Berube, a spokeswoman for the Canadian Security Intelligence Service.

“In our view this decision recognizes that security threats move easily from one country to another and that countering those threats required a new approach.”

A number of recent Canadian prosecutions have brought the issue of homegrown terrorism to the fore, but this may be the tip of the iceberg.