CSIS “Implants” in Electronic Devices Okay… Under These Conditions

Computer crime concept

A reference put to the Federal Court has upheld Canadian Security Intelligence Service (CSIS) warrants authorizing the use of “implants” on electronic devices to collect and intercept information.

In the decision released yesterday, Justice Fothergill clarified the rules around mandated search protocols that are to be issued with these types of warrants:

  1. “Where an implant is remotely installed…a survey of the device must be performed prior to intercepting communications and obtaining the information described in the warrants”.
  2. “The data obtained at the survey stage must be limited to those described in paragraphs 10 and 11 of these Reasons” (paragraphs 10 and 11 are heavily  redacted).
  3. “A designated [CSIS] employee must review the data obtained at the survey stage and determine whether there are reasonable grounds to believe that the device is (a) a portable device belonging to or used by the subject of investigation; or (b) a computer holding information that may be obtained pursuant to a general intercept and search warrant”.
  4. “If either condition 3(a) or (b) is met, then the survey information may be retained and full interception and collection from the device may commence”.
  5. “If neither condition 3(a) or 3(b) is met, then the survey information must be destroyed as soon as reasonably practicable, but no later than six months from the date it was obtained. No further use of the survey information may be made”.

Justice Fothergill made his decision based on recommendations by Chief Justice Crampton, the Attorney General of Canada, and an appointed amicus curiae.

The recommended modifications to search protocols were set up as “sufficiently robust” safeguards to ensure that Charter rights, privacy rights, and the rights of innocent parties are protected.

The court may issue a CSIS warrant under section 12 of the CSIS Act so long as it adheres to requirements under section 21 (2) of the Act. With that in mind, a CSIS search conducted pursuant to a warrant may contravene  section 8 of the Charter of Rights and Freedoms if it is carried out unreasonably. This may be because the issuing justice did not limit the breadth of authorization, or because those executing the search did not adhere to minimization principles.

Privacy is a sensitive issue. One of the challenges facing the Court is how to balance interests of national security with people’s expectations of privacy. Intercepting and collecting information stored on computers, phones, and laptops could result in the government getting its hands on very personal information. That is why Justice Fothergill found it so important to mandate some sort of preliminary survey before full surveillance begins to “minimize intrusion into the Charter rights and privacy interests” of innocent third parties. The government will not be able to begin full surveillance until it is satisfied that the device belongs to or is used by the subject of the investigation.

In this case, the Court was satisfied that the requested “implant” warrants were required to investigate a threat to Canada’s security, and that other investigated methods had been tried and failed. The government got the green light to use an implant in their investigation into Islamist terrorism provided that the search protocols and preliminary surveys are carried out.

This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC.

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