CSIS Gets New Preservation & Production Orders
Published:
July 16, 2024
Author(s):
The Canadian Security Intelligence Service (CSIS) has been looking for a new production order power; it’s on its way. The role of CSIS is to investigate activities suspected of constituting threats to the security of Canada and to report on these to the Government of Canada. CSIS is also empowered to take measures to reduce threats to the security of Canada. On May 6, 2024, the Government of Canada tabled Bill C-70, An Act Respecting Countering Foreign Interference. The Bill sped through the House of Commons and the Senate and received Royal Assent on June 20, 2024. The Bill will create a Foreign Influence Transparency and Accountability Act and make a number of significant amendments to other statutes such as the Criminal Code of Canada, the Canada Evidence Act, the Security of Information Act and the Canadian Security Intelligence Service Act (CSIS Act). Among the proposed amendments to the CSIS Act is the creation of a new preservation order and a new production order for CSIS.
The new orders are a positive development. The preservation and production orders are much more streamlined and easier to comply with. And the appropriate checks and balances are there: the new orders are only available first with the approval of the Minister of Public Safety and then only with judicial approval based on information under oath. Here’s a closer look at the proposed new CSIS production and preservation orders.
Preservation Order
Like police are able to obtain under the Criminal Code, the amendments will give CSIS the ability to obtain a preservation order. Currently, a preservation order for law enforcement in section 487.013 of the Criminal Code is restricted to “computer data”. The proposed CSIS Act preservation order will extend this to “any information, record or document — regardless of medium or form — or thing”. A Federal Court judge can grant a preservation order where there are reasonable grounds to suspect there is any “any information, record or document — regardless of medium or form — or thing” that will assist CSIS in carrying out its mandate, and that CSIS intends to seek via a warrant or production order. Notably, CSIS can’t obtain “things” via a production order, only via a warrant.
Production Orders
Also like the Criminal Code for traditional law enforcement, the amendments will give CSIS the ability to obtain a production order. Currently, CSIS can only compel the production of information via its search warrant powers under section 21 of the CSIS Act, sometimes accompanied by an assistance order. But for third parties that might possess information that’s the subject of a court-approved warrant, the warrant is an awkward and sometimes unworkable device:
- They are generally classified Top Secret and open-ended.
- They often don’t name the specific subject of the inquiry (First Name Unknown, Last Name Unknown) or an account identifier; CSIS might discover those in the process of the investigation and they’re covered by the warrant, but they aren’t written in the warrant.
As a result, when CSIS is looking for information about customers or users of third-party services, they can’t give that service provider a copy of the warrant. This, of course, causes difficulties for service providers that need to satisfy themselves both that CSIS has the lawful authority to acquire the information and that the service provider is lawfully permitted to disclose the information without risk of liability under Canadian law. The new production order should solve this problem: it will name the organization being ordered to produce the records and it will name the specific records CSIS is seeking. The organization on the receiving end of it will be able to satisfy itself that the order is it’s a lawful order and what it’s requiring them to produce.
Reasonable Grounds. The new production order will largely mirror general production orders under the Criminal Code of Canada. A CSIS officer will have to appear before a designated Federal Court judge and satisfy the judge, based on information under oath, that “that there are reasonable grounds to believe that the information, record or document is in the person or entity’s possession or control and will assist the Service to investigate, within or outside Canada, a threat to the security of Canada or to perform its duties and functions under section 16.” This is similar to a showing of probable cause in the U.S.
Extraterritorial Application. The new CSIS Act provisions say the order can apply to data and records that are outside of Canada – but notably, it’s silent with respect to its application to organizations outside of Canada. Applying this extraterritorially will be problematic, more problematic than attempting to do so with a Criminal Code production order. Countries often have a common interest in investigating crime; however, interests might diverge more vigorously when you’re dealing with the covert collection of security intelligence. Canada would understandably be very offended if the Chinese security service attempted to compel records from a Canada-based, Canadian company. The reverse is likely also the case.
Variation or Revocation. As with Criminal Code production orders, the organization that is on the receiving end can apply to a Canadian court to have the order varied or revoked because on grounds either:
- Unreasonable in the circumstances to require the applicant to produce the information, record or document.
- Production of the information, record or document would disclose information that is privileged or otherwise protected from disclosure by law.
For U.S.-based organizations, it’s arguably “unreasonable in the circumstances” to require the organization to violate U.S. law, such as the Stored Communication Act, a so-called “blocking” statute that regulates the circumstances under which an ‘‘electronic communications service provider” in the U.S. can disclose information related to its account-holders. It could also be argued that data that’s subject to a non-Canadian blocking statute could be “otherwise protected from disclosure by law”. Importantly, an application to vary or revoke can only be made within 14 days after receiving the order.
Please contact your McInnes Cooper lawyer or any member of our Privacy, Data Protection & Cyber Security Team @ McInnes Cooper to discuss compliance with CSIS preservation or production orders.
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