Canada's spy agency needs a warrant when using a secretive type of technology that could help them "learn about an individual's private activities and personal choices" as part of its foreign intelligence gathering mandate, according to a recent Federal Court decision.
Details of what exactly that technology is and how it's used were redacted in the June 2020 court ruling, which was posted online today.
The Federal Court's findings would only say it concerns technology that allows the Canadian Security Intelligence Service (CSIS) to collect certain information from mobile devices.
The ruling grew out of a 2017 application for warrants to gather foreign intelligence on an undisclosed entity.
"It then grew, becoming a vehicle for the consideration of a number of issues," wrote Justice James O'Reilly in his decision, which had entire paragraphs blacked out.
One of the questions he examined was whether this top-secret cellphone technology requires a warrant.
CSIS argued some of the most valuable information it obtains in support of its intelligence mandate often comes from intercepted communications of "foreign persons who are associated with foreign states, groups of foreign states, or foreign corporations."
"To obtain a warrant to carry out these interceptions, the service must present reasonable grounds to believe that a foreign person or persons will be sending or receiving communications over a particular [redacted] device that is owned or leased by them," said the court document.
CSIS also argued that while the surveys it conducts with this technology are searches, they are "minimally intrusive."
CSIS would be able to 'draw inference,' says justice
However, O'Reilly ruled that CSIS's interception of this type of data "is more than minimally intrusive" and requires a warrant under a section of the Canadian Charter of Rights and Freedoms protecting against unreasonable search and seizure.
"Having access to this data would allow the service to draw inferences about an individual's personal lifestyle choices," he wrote.
"Therefore, in my view, the information [redacted] may allow inferences to be drawn about lifestyle choices and private activities that individuals would wish to maintain and shield from state authorities. Their expectation of privacy in that information is reasonable."
O'Reilly did say that CSIS is within its authority to use cellular site simulators (CSS) without a warrant. The devices can reveal the country where the user's cellular account is located along with the make, model, and serial number of the device.
The decision said the agency's foreign intelligence gathering mandate provides "a sufficient and reasonable statutory basis" for these types of warrantless searches, so long as they are "minimally intrusive and conducted in a reasonable manner."
John Townsend, spokesperson for CSIS, said the agency could not comment further on O'Reilly's decision regarding the technology.
MPs' communications could be swept up under mandate
The Federal Court justice also said CSIS should improve its policies around the collection of "incidental" information it gathers on Canadians, including elected officials, as part of its foreign intelligence gathering mandate.
Under the Canadian Security Intelligence Service Act, the agency can gather information about the "capabilities, intentions or activities" of foreign states or any persons other than Canadian citizens and permanent residents to assist the ministers of defence and foreign affairs.
As part of the application for warrants, questions were raised about incidental interception of communications between members of federal or provincial legislatures and foreign actors.
For example, O'Reilly said a foreign target who is being watched under a court-approved warrant may telephone an MP to discuss a matter of mutual interest or concern. The member's comments could then be intercepted incidentally as a result of the warrant.
O'Reilly called it "an inevitable consequence of foreign intelligence gathering."
"I found the service's conduct generally to be appropriate and satisfactory. However, I suggest that the service should develop guidelines for distributing and unminimizing the identities of Canadians whose communications have been incidentally intercepted, and should provide the court an opportunity to comment on them," he wrote.
"It should also specifically disclose when there is a possibility that the communications of an elected official or other public servant may be intercepted, allowing the court to impose any necessary terms and conditions on the execution of the warrants."
Townsend said the agency has since developed guidelines with respect to the management of incidentally collected information and has provided them to the Federal Court for review.
"CSIS welcomes the decision by the Federal Court with respect to matters concerning [section 16] of the CSIS Act," he said in a statement to CBC.
"This decision further demonstrates how CSIS abides by its mandate and takes its responsibility to the Federal Court and to all Canadians very seriously."
When it comes to elected officials' communications, the judge said his concern for more care grows out of the potentially secret nature of the information.
"It is not parliamentary privilege itself that animates the need for extra care; indeed, few officials could mount any real claim to privilege. The concern about gathering information about public officials is that the service may be intercepting highly sensitive communications emanating from persons charged with the governance of Canada," he said.
"That information, particularly information about the identity of the Canadian persons involved, must be carefully handled."
O'Reilly said without better guidelines, decisions about the retention, disclosure, and distribution of that information is left to individual discretion