Another new factor is the presence of Canadians in CSE’s hunting grounds. CSE was unable to assist during the FLQ crisis in 1970—it had no capability to monitor Canadians. In the post-2001 era, that is no longer true: the Internet traffic of Canadians mixes with that of everybody else, and CSE encounters it even when it is trying not to. When operating under judicial warrants obtained by CSIS or the RCMP, it deliberately goes after Canadian communications. CSE also passes on information about Canadians collected by its Five Eyes partners.
A special watchdog—the CSE Commissioner—was established in 1996 to monitor the legality of CSE’s activities. Over the years, Commissioners have often reported weaknesses in the measures the agency takes to protect Canadian privacy, but only once, last year, has a Commissioner declared CSE in non-compliance with the law.
Whether CSE’s watchdog is an adequate safeguard for the privacy of Canadians is a matter of continuing debate. One thing, however, is clear: As CSE enters its 71st year, the days when its gaze faced exclusively outward are gone for good.
Bill Robinson has done a terrific job providing a historical overview of Canada’s equivalent of the National Security Agency (NSA). His knowledge of the Communications Security Establishment (CSE) is immense.
Canadians now live in a country wherein this secretive institution, the CSE, is capable of massively monitoring our domestic as well as foreign communications. And, in fact, a constitutional challenge is before the courts that is intended to restrain CSE’s domestic surveillance. But before that case is decided CSE will analyze, share, and act on our domestic communications infrastructure without genuine public accountability. As an intelligence, as opposed to policing, organization its methods, techniques, and activities are almost entirely hidden from the public and its political representatives, as well as from most of Canada’s legal profession. A democracy can easily wilt when basic freedoms of speech and association are infringed upon and, in the case of CSE, such freedoms might be impacted without the speakers or those engaging with one another online ever realizing that their basic rights were being inhibited. Such possibilities raise existential threats to democratic governance and need to be alleviated as much as possible if our democracy is to be maintained, fostered, and enhanced.