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Federal Court ruling on the retention of associated data linked to third party information

November 03, 2016

  • CSIS takes seriously the concerns expressed by the Court with respect to meeting our duty of candour, and recognizes the importance of openness and transparency with the Federal Court.
  • CSIS is working closely with the Department of Justice to develop measures aimed at ensuring that we meet our obligations to the Court in matters of transparency and duty of candour.
  • The Canadian Security Intelligence Service is mandated to investigate activities which may, on reasonable grounds, be suspected of posing a threat to the security of Canada. In order to investigate these threats, CSIS may apply to the Federal Court for a warrant when the response to the threat requires more intrusive measures.  
  • Through the proceedings of the Court, over time, the provisions of warrants have changed to take into account the evolution of technology, legal developments, and investigative measures.
  • This ensures that the powers granted by the warrants are clearly defined and that their conditions take into account the impact that the execution of the warrant has on the collection and the retention of information.
  • The decision relates to the retention of certain information that has been legally collected via the execution of warrants, issued by the Court, which authorized the interception of communications. 
  • CSIS had sought to fully analyze all of the information - both the content and the associated data - for example, email addresses and telephone numbers.
  • As is the case for many of our international partners, CSIS has developed data analytic capabilities and expertise to significantly enhance the identification and assessment of threats to the security of Canada over time and space. This includes identifying patterns of movement, communications, behaviours, broad trends, and links that are otherwise unidentifiable. 
  • When it comes to understanding and predicting the actions of the subjects of our investigations, data analytics has proven to be an effective tool.
  • In the ruling released today, the Federal Court recognized the intelligence value of the data analytic programme and did not question the authority of collecting telecommunications associated data pursuant to warrants. 
  • On the very specific issue of associated data linked to third-party communications, the Court found that it can only be retained if it is related to threats or of use to an investigation, prosecution, national defence or international affairs.
  • CSIS, in consultation with the Department of Justice, had interpreted the CSIS Act as enabling the retention of this sub-set of associated data to allow for that important analytic work.  At no time did the Service believe this to be inconsistent with the CSIS Act.
  • It is now clear that the Federal Court, on the issue of the retention of certain data, interprets the Act differently.
  • We accept this decision and have taken immediate actions to respond.
  • In response to the decision, CSIS halted all access to, and analysis of, associated data while we undertake a thorough review of the decision in order to assess potential operational and legal impacts, and determine our way forward.
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