Midst Toil and Tribulation…

Amidst all of the sound and fury surrounding the Snowden leaks and general discussions of electronic monitoring conducted by the NSA, several things seem to have been forgotten.  I am speaking, in particular, about the minor little facts that each and every intelligence agency, at least in the Five Eyes, has reciprocal relationships with the other ones.

“So what?”, I can hear people say.  Well, it’s actually pretty simple: if a national law prevents, say, the NSA from spying from examining the content of emails from American citizens, nothing prevents either GCHQ (U.K. Government Communications HeadQuarters), CSIS (Canadian Security Intelligence Service) or CSEC (Communications Security Establishment Canada) from doing so.  Indeed, much of this “cross-checking” is routine; a courtesy extended between agencies upon request.

Still don’t get it?  Let me put it in very simple language: national security agencies will get access to data on their citizens regardless of national laws simply as a matter of routine inter-agency co-operation.  Let’s just take a case in point that has reached the courts.

On December 21st, 2013, CBC.ca ran a story entitled CSIS slammed for end-running law to snoop on Canadians abroad.  In 2008, CSIS requested warrants to track two Canadian citizens when they were abroad, assuring Judge Richard Mosley that the monitoring would be carried out in Canada.  They then asked foreign agencies for help in monitoring, a routine request, and did not inform the courts. Justice Mosley’s comments on this are quoted in the CBC article:

It is clear that the exercise of the court’s warrant issuing has been used as protective cover for activities that it has not authorized,…. The failure to disclose that information was the result of a deliberate decision to keep the court in the dark about the scope and extent of the foreign collection efforts that would flow from the court’s issuance of a warrant.

In effect, CSIS used the warrants to conduct an end run around Canadian law.  Can the same be said for the NSA?

On December 13th, 2013, Justice Richard Leon submitted an opinion in Klayman v. Obama requiring the (US) government to cease collection of metadata by the NSA on the two plaintiffs (Click here to read an excellent synopsis of the decision).  What I find interesting, however, is that the issue of foreign agencies collecting such data and sharing it with the NSA is not raised.  I have to wonder what will happen when it is.

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