Category Archives: Legal Remedies

The Government Has Used the All Writs Act on Android Phones At Least 9 Times - Motherboard 20160330

The Government Has Used the All Writs Act on Android Phones At Least 9 Times - Motherboard 20160330

The federal government has asked Google for technical assistance to help it break into a locked Android smartphone using the All Writs Act at least nine times, according to publicly available court documents discovered by the American Civil Liberties Union.

The ACLU released the Google court documents along with 54 court cases in which the feds asked Apple for assistance obtaining information from a locked iPhone. The revelations show that many agencies have been using the All Writs Act, a 1789 law that the government says allows it to compel third party companies to help it in criminal investigations.

The law was at the heart of a recent legal battle between the FBI and Apple in San Bernardino, and this is the first time it’s been confirmed that Google has also received these sorts of orders. The FBI and Apple have an ongoing legal battle over the issue in New York.

The cases all appear to be closed, are in seven separate states, and involve the Department of Homeland Security, FBI, Customs and Border Patrol, the Secret Service, and, interestingly, the Bureau of Land Management. Google is believed to have complied with all of the orders, however the company tells Motherboard that none of the cases required the company to write new software for the federal government.

"We carefully scrutinize subpoenas and court orders to make sure they meet both the letter and spirit of the law,” a Google spokesperson told me. “However, we've never received an All Writs Act order like the one Apple recently fought that demands we build new tools that actively compromise our products' security. As our amicus shows, we would strongly object to such an order."

Google, Microsoft, Facebook, and several other major tech companies filed a legal brief in support of Apple in its recently-ended legal battle with the federal government, which said the companies are “united in their view that the government’s order to Apple exceeds the bounds of existing law and, when applied more broadly, will harm Americans’ security in the long run.”

In many of the cases found by the ACLU on publicly available law databases, Google was required to reset the password of an Android smartphone so that the government could gain access. Passcode and password resets of this kind are not possible on iPhones.

Google’s switch to default device encryption happened only with the Marshmallow version of Android, which was released in October but is still not available for many Android phones. Android phones are notoriously slow to get Google’s security and software updates; just 2.3 percent of Android phones are running Marshmallow, according to Google. It’s hard to say for sure, but it seems possible that Google has dealt with fewer of these orders because most of the Android phones out in the wild are likely susceptible to the federal government’s forensic tools.

Google has been asked to assist the Bureau of Land Management in the investigation of an alleged marijuana grow operation in Oregon; the Department of Homeland Security in an investigation of an alleged child pornographer in California; the FBI in the investigation of an alleged cocaine dealer named “Grumpy” in New Mexico; and the Secret Service in an unknown case in North Carolina. It has been asked to reset the passwords or bypass the lock screens of Samsung, Kyocera, Alcatel, and HTC phones, among several other unidentified devices.

“These cases show that the government has an interest in getting this kind of assistance from tech companies in a wide variety of cases,” ACLU attorney Esha Bhandari told me. “The government and law enforcement in general have an interest in using the All Writs Act in a wide variety of investigations, including criminal investigations.”

Court documents for the cases are available here:

University Essex launches Human Rights, Big Data and Technology project - 20160302

University Essex launches Human Rights, Big Data and Technology project - 20160302

Are big data and technology threats to human rights?

The ESRC-funded ‘Human Rights, Big Data and Technology’ project maps and analyses the challenges and opportunities presented by the use of information and communications technology (ICT) and big data from a human rights perspective.

Modern computing methods, in particular so-called big data technology, constitute a paradigm shift in how we interact and communicate. However, as underscored by the Edward Snowden revelations, the collection and analysis of big data poses a risk to privacy. These revelations are part of a much bigger picture in which state surveillance and near ubiquitous non-state “soft-surveillance” occur on a routine, daily basis. This poses threats across a broad spectrum of rights, including to liberty, freedom of expression and equality and non-discrimination.

However the same technologies that potentially threaten rights also provide opportunities for their enhanced protection. For example, social media provides a platform for better documentation of human rights violations. Additionally, technology can demonstrate the effectiveness of rights-shaped policies in areas such as health promotion in order to influence resource allocation and budgets.

Edward SnowdenSnowden's revelations are part of a much bigger picture.

Drawing on the wide range of expertise of its interdisciplinary researchers and partner organisations, the project considers whether fundamental human rights concepts and approaches need to be adapted to meet the rapidly evolving technological landscape. The work also brings together practitioners in the fields of human rights and technology, international internet governance, the UN, technology industries, and academics, to assess existing regulatory responses and the need for reforms in order to maximise effective human rights protection.

This project is innovative in its holistic examination of the ways in which the use of ICT and big data both threaten rights and offer opportunities to strengthen their protection and implementation. Through this wide lens, the project will establish the need for a fundamental re-assessment of the theory and practice of human rights and will advance approaches to regulation in a constantly changing technological world.

Schneier, Bruce and Weaver, Nicholas - Amicus brief in Wikimedia v. NSA - 20160224

Excerpt from Schneier, Bruce and Weaver, Nicholas - Amicus brief in Wikimedia v. NSA - 20160224

This lawsuit presents a constitutional challenge to the U.S. government’s “Upstream” surveillance program. Plaintiffs allege that the government is copying and reviewing substantially all international text-based communications, including their own, and that they have established to a virtual certainty that the government is copying and reviewing at least some of their communications. The District Court dismissed the case for lack of standing, opining that Plaintiffs’ allegations were based on speculation and conjecture.

As technical experts, we disagree. The information publicly available about the Upstream program, combined with an understanding of how the internet works, leads to the inevitable conclusion that the NSA is copying and searching all communications that flow through the particular points on the internet “backbone” at which the NSA has intervened. All international communications travel through a limited number of international internet links, or circuits, on this backbone. The government has officially acknowledged monitoring multiple circuits. Plaintiff Wikimedia’s international communications traverse every one of these circuits. Finally, the NSA seizes and searches all communications that travel over each circuit that it is monitoring.

Therefore, it is certain, as a technical matter, that some of Plaintiff Wikimedia’s communications have been subject to Upstream surveillance. For this reason, the District Court decision should be reversed, and this lawsuit should be allowed to proceed. 1

I. A Brief Legal History Of Upstream Surveillance

Following the terrorist attacks of September 11, 2001, President Bush authorized a secret surveillance program aimed at collecting communications thought to contain foreign intelligence information when one end of the communication was in the United States. Many companies, including AT&T, voluntarily cooperated with this surveillance program. In 2005, after the press revealed the existence of the warrantless wiretapping portions of the program, the government sought to place it on surer legal footing. These efforts eventually led to the enactment of the FISA Amendments Act in 2008.

Section 702 of the FISA Amendments Act provided a statutory framework for programmatic surveillance of foreign targets without probable cause, even when they communicated with people within the United States. In other words, the purpose and function of Section 702 is to enable surveillance of foreigners overseas who are communicating with U.S. persons such as Plaintiffs. Section 702 also empowered the government to compel, not just request, cooperation from service providers.

For years, the public’s understanding of Section 702 was confined to the text of the statute itself. In a previous legal challenge to the statute, the Supreme Court observed that without facts about how the government had implemented Section 702, it was not clear whether the government had engaged in broad surveillance, let alone that such surveillance touched the particular plaintiffs in that case. Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1148 (2013). For those reasons and others, the Court dismissed that challenge for lack of standing.

Much has changed since then. As a result of public disclosures regarding NSA surveillance, the publication of comprehensive government reports, and the declassification of multiple FISC opinions, the public’s legal and technical understanding of Section 702 surveillance has increased substantially.

Importantly, it is now clear that the NSA uses Section 702 to compel communications providers to assist with surveillance of the internet “backbone”— the high-capacity cables, switches, and routers that route both domestic and international communication via the internet. See Privacy and Civil Liberties Oversight Board, Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act (“PCLOB Report”) 35-37 (2014); Am. Compl. (“Compl.”) ¶¶ 40-47 (JA 40-43). This backbone surveillance—called Upstream surveillance by the government—enables the NSA to capture communications to, from, and even about foreign intelligence targets.

II. The NSA Monitors Internet Circuits Through Which Plaintiff Wikimedia’s Communications Flow

Through Upstream surveillance, the NSA wiretaps communications directly from the internet backbone with the compelled assistance of the telecommunications companies that control the relevant access points. Because Upstream surveillance captures internet communications in transit, the mode by which data moves across the internet backbone has important implications for how Upstream surveillance functions.

Although the internet is largely decentralized, there are network chokepoints on the internet backbone that handle a substantial amount of data. There are 49 high-capacity submarine cables that enter the United States at 43 different locations, through which virtually all communications entering or leaving the United States flow. See TeleGeography Submarine Cable Map, available at (While 65 undersea cables touch down in the U.S., 49 of them are international, and those collectively use 43 landing points.) In addition, there are a limited number of high-capacity cables that link major metropolitan areas in the United States. Surveillance conducted at these chokepoints gives a wiretapper access to huge amounts of international internet communications. Domestic communications traverse these chokepoints as well.

The NSA conducts Upstream surveillance using surveillance devices installed on the internet backbone. Compl. ¶ 47 (JA 42-43). 2 These surveillance devices are located at chokepoints through which flow almost all internet communications entering or leaving the country. Id. ¶¶ 60, 68-69 (JA 47, 50-51). The government has acknowledged that it conducts Upstream surveillance on these major internet circuits. See [Redacted], 2011 WL 10945618, at *15 (FISC Oct. 3, 2011) (The NSA collects communications transactions when “routed through an international internet link being monitored by NSA”); David S. Kris & J. Douglas Wilson, National Security Investigations & Prosecutions 2d § 16.12 n.10, § 17.5 n.49 (Database updated July 2015) (“The government’s December 2014 disclosures confirm that large facilities, carrying communications from many individual telephone numbers and e-mail addresses, were surveilled.”); see also PCLOB Report at 36-37; Compl. ¶¶ 68-69 (JA 50-51). And published documents from the NSA show that just one telecommunications provider gives the NSA Upstream surveillance capabilities at seven major international facilities. Compl. ¶ 68 (JA 50-51). 3

As Plaintiffs explain, Wikimedia operates one of the ten most-visited websites in the world and engages in more than a trillion international internet communications each year. Compl. ¶ 88 (JA 56). Wikimedia has hundreds of millions of users, who are located in virtually every country on Earth. Id. ¶¶ 79, 85 (JA 53, 55). Wikimedia’s trillion-plus international communications are so numerous and so widely distributed across the internet, its communications traverse every major internet circuit entering or leaving the United States. Id. ¶ 61 (JA 48).

For an entity like Wikimedia, given their volume of internet traffic, it would be impossible that none of their communications travelled through one of the international circuits the NSA monitors. This inevitability holds, even if one believes the improbable claim that the NSA only monitors a few international circuits. See District Court Opinion at 17 (JA 190) (citing “the fact that Upstream surveillance equipment has been installed at some of the Internet backbone chokepoints.”) With over a trillion international communications per year, it is virtually certain that Wikimedia communications have passed through a NSA monitored circuit, even if the NSA is monitoring just one.

III. Upstream Necessarily Involves Searching All Communications That Traverse Circuits On The Internet Backbone At Which the NSA Or Its Agents Have Installed Surveillance Equipment

It is also certain that when Wikimedia’s communications pass through the NSA monitored circuit or circuits, the government seizes and searches them. This is not speculation. Technological realities make it clear that the NSA seizes and searches every communication that passes through the monitored circuits on the internet backbone. The only technologically feasible way for Upstream surveillance to work is for the NSA to seize the entire flow of internet communications content flowing over a particular circuit on the internet backbone, and only after this seizure, search all non-filtered packets for selectors.

After copying the data that flows through a monitored circuit, the NSA first attempts to filter purely domestic communications out of the captured data. As the government has acknowledged, however, this filtering process is imperfect. Many purely domestic communications are routed internationally, while others are bundled with international communications and thus will not be eliminated through filtering. Importantly, the NSA makes no attempt to filter out a U.S. person’s communications with a non-U.S. person outside of the United States, as Section 702 expressly permits surveillance of such communications.

The NSA also attempts to filter out certain types of uninteresting internet traffic, such as streaming movies. The NSA does not filter out http (World Wide Web) traffic generally and has even identified Wikimedia traffic as an example of information in which it is specifically interested. Compl. ¶ 107 (JA 63).

Next, the NSA searches the non-filtered data using “selectors.” A designated selector could be an email address associated with a foreign intelligence target or some other selector believed to reflect a foreign intelligence purpose. Kris & Wilson, National Security Investigations & Prosecutions 2d § 17.5. The NSA retains those communications containing its selectors for further analysis and distribution.

Importantly, Upstream surveillance does not involve the NSA’s seizure and search of only the communications that contain selectors. That is because, in order to determine whether a particular communication contains a selector, the government must seize and search all of the communications transiting the circuit it is monitoring. At the time that the communication goes through the NSA monitoring equipment, the government has no idea whether or not it contains the relevant selector. Only by seizing and then searching every communication that passes through its devices can the NSA determine which communications contain its selectors. See [Redacted], 2011 WL 10945618 at *14 (“[A]t the time of acquisition, the NSA’s upstream collection devices often lack the capability to
determine whether a transaction contains a single communication or multiple communications, or to identify the parties to any particular communication within a transaction.”).

The basic architecture of the internet explains why. The internet is a “packet switched” network, meaning that, unlike the telephone network which directly connects the individuals speaking to each other, the internet breaks all digital communications into “packets”—discrete chunks of information that are relatively small. Packets are labeled with important routing information, including the origin and destination internet protocol address, or IP address. The IP address tells intermediary computers where to send information, and packets travel from machine to machine (and network to network) until the information reaches its destination.

Most internet communications will constitute more than one packet, as packets are commonly less than 1500 bytes in size. Center for Applied Internet Data Analysis, Packet size distribution comparison between Internet links in 1998 and 2008 (Jan. 14, 2010), A typical webpage such as those communicated by Plaintiff Wikimedia is multiple times that size. For example, the Wikipedia page for attorney Jennifer Granick constitutes 110,767 bytes, which means that it might traverse the internet in 70 packets or more. See Jennifer Granick, Wikipedia, (last visited Feb. 22, 2016). Because a single communication is often broken into multiple packets, packets are also labeled with information that allows destination computers to reassemble multiple constituent packets back into a single, readable communication.

The information of potential interest to the NSA is contained within the part of an internet packet known as the “Application Layer.” The Application Layer contains the actual content of the communication being transmitted. In order to determine which communications contain its selectors, the NSA must first seize and then search the content—i.e., the Application Layer—of each packet that flows across the particular points of the internet backbone at which it has intervened. There is no other way the NSA knows whether a particular packet contains a particular selector. As a result, Upstream surveillance can be understood as the internet equivalent of opening and reading all mail passing through the post office in order to determine whether letters concern foreign intelligence targets. See Kris & Wilson, National Security Investigations & Prosecutions 2d § 17.5 (“NSA’s machines scan the contents of all of the communications passing through the collection point . . .”).

The NSA’s acknowledgement of “about” surveillance confirms that Upstream surveillance involves searching the contents of all packets that pass through the NSA’s points of interception. “About” surveillance refers to the collection of communications that are not to or from a particular selector, but rather mention—i.e., are about—that selector. For instance, if the NSA’s designated selector were an email address, the only way the agency would know that a web page or other http connection to Wikimedia contained that email address as part of a Wikipedia web page, suggested edit, or chat room is for the NSA to search the content of the non-filtered packets that pass through the surveillance devices.

The fact that a single communication is typically too large to fit into a single packet only further illustrates why Upstream surveillance necessarily involves seizing and then searching every internet packet that flows through the NSA collection devices on the internet backbone, regardless of whether that communication is of foreign intelligence relevance or not. When the content of a single communication is too large to fit into a single packet, that communication will be divided into multiple packets. These packets will travel across the internet backbone and independently arrive at a single destination, where they will be reassembled so that the recipient can receive and “read” the message being sent— whether an email, instant message, webpage, or video.

Because a communication traverses the internet backbone as separate packets traveling at different times, the NSA must capture all data that passes through its points of interception in order to reassemble the packets into a comprehensible communication. This is not speculation, this is common networking sense.

Imagine a short email that is split into three packets. Only the third packet contains the NSA selector Upon identifying the selector in the third packet, the NSA can only reassemble the communication if it has at least temporarily seized the first two packets that make up the communication. Only then may the three packets be joined together into a readable message. Without at least temporarily storing the packets comprising the internet flow, the NSA cannot be sure that it will have all the packets comprising a message it wants to collect. 4 Otherwise, when the packet containing an NSA selector arrives after the other packets comprising the same message, the NSA will be unable to reassemble the message and make sense of it. The meaning of intercepted foreign intelligence communications would be lost.

For these reasons, Upstream collection necessarily entails seizing and searching the contents of every non-filtered international communication that flows through a circuit that the NSA monitors.

IV. Plaintiffs’ Allegations That Their Communications Have Been Seized And Searched As Part of the Government’s Upstream Surveillance Program Are Based On Technological Facts, and Not Mere Speculation

The principal question before this Court is whether Wikimedia and other Plaintiffs have plausibly alleged that they face a “substantial risk” that the NSA has searched their communications under the Upstream surveillance program. Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014). A complaint should not be dismissed if it is “plausible” and “provides sufficient detail about the claim to show that the plaintiff has a more-than-conceivable chance of success on the merits.” Goldfarb v. Mayor & City Council of Balt., 791 F.3d 500, 511 (4th Cir. 2015). From a technological perspective, the allegation that Plaintiffs communications have been seized and searched by Defendants is more than plausible. Especially with regard to Plaintiff Wikimedia, the facts now known about Upstream surveillance, coupled with a basic understanding of the way the internet works, renders any other inference simply unfathomable. Wikimedia’s communications travel internationally over every internet circuit. The NSA monitors one or more of those circuits. That monitoring consists of seizing, searching, and potentially ingesting Wikimedia messages into NSA databases. This allegation is not just plausible, it is highly credible.

Wikimedia’s communications permeate the international internet circuits, and the NSA is there. Wikimedia’s trillion communications per year transit every major internet circuit entering or leaving the United States. As a result, the government need only be monitoring one such circuit—and its own acknowledgements make clear it is doing so—in order to encounter Wikimedia communications. When conducting Upstream surveillance, the government is copying and searching all the international text-based communications on each of the circuits it is monitoring. Just as a chef ingests salt when she tastes a seasoned pot of soup, the NSA searches Wikimedia communications when it monitors one or more international internet circuits.

Wikimedia is challenging the constitutionality of that seizure and search. Amici express no opinion on that underlying matter. But we do believe that Wikimedia has alleged sufficient facts to show standing to bring this case.

  1. Plaintiffs rely on two distinct standing theories. See Pl. Br. Sections I.B-C. Both of those standing claims are plausible. For the purposes of this brief, however, amici focus their technological analysis on Plaintiff Wikimedia’s standing claim.
  2. #2 Some of the steps involved in Upstream surveillance may be performed by telecommunications providers. See Am. Compl. ¶¶ 47-49 (stating that some aspects of Upstream surveillance may be conducted by telecommunications providers at the government’s behest); PCLOB Report at 7, 32. Regardless of whether the NSA or the provider conducts the collection, it is performed at the government’s behest and pursuant to Section 702, and therefore constitutes government action.
  3. It stands to reason that the NSA has many more circuits tapped. Nevertheless, the analysis that follows holds even if the Court were to assume that the NSA has intervened at just one point on the internet backbone.
  4. 4 Defendants relied on the Declaration of Robert Lee below in order to dispute Plaintiffs’ allegations on the merits. Mr. Lee asserted that “not all packets of a given TCP stream are necessary to intelligibly assemble its contents.” Decl. of Robert T. Lee (“Lee Decl.”) ¶ 13 n.4 (JA 107). Lee explains that “each TCP stream includes packets that do not transmit substantive information but that facilitate the connection.” Id. The fact that TCP streams include some packets that do not contain communications content (e.g. TCP’s “three way handshake”—packets that request to open a connection, acknowledge receipt of that request, and then acknowledge that the second transmission was received by the initiating device, id.) does not refute our point that the government must collect those packets that do contain content in order to make sense of the reassembled message later on.

Granick, Jennifer - Technologists' brief in Wikimedia v. NSA - Center for Internet and Society 20160224

Granick, Jennifer - Technologists' brief in Wikimedia v. NSA - Center for Internet and Society 20160224

Today, the Stanford Center for Internet and Society and attorney Matthew J. Craig of Shapiro Arato LLP filed anamicus brief on behalf of Internet networking experts and other computer scientists arguing that the ACLU's challenge to warrantless wiretapping under the FISA Amendments Act should have its day in court. The case brought by Wikimedia Foundation and the ACLU's other clients was dismissed after the government argued that Wikimedia and other heavy users of the Internet for international communications can't show a probability that their communications were seized and searched by NSA. (They don't have to show a certainty.) The judge agreed, saying that Wikimedia's assertion it's Internet communications were seized and searched by the NSA was speculative. Therefore he dismissed the case for lack of standing.

This is a technical issue as much as a legal one. Amici, who include Dr. Nicholas Weaver, an expert on network security, worms, botnets, and network measurement, assert that the trial court's ruling was based on lack of technical information about how one searches content on packet switched networks. The information publicly available on the NSA's Upstream program, combined with an understanding of how the Internet works, leads to the inevitable conclusion that the NSA is copying and searching all communications that flow through the particular points on the Internet “backbone” at which the NSA has surveillance devices. Plaintiff Wikimedia plausibly alleged that its trillion international communications per year traverse every one of these circuits. Therefore, it practically certain, as a technical matter, that some of Plaintiff Wikimedia’s communications have been subject to Upstream surveillance. For these reasons, amici assert that the appellate Court should find that Plaintiffs have standing, reverse the District Court decision, and allow the lawsuit to proceed

The case is Wikimedia v. NSA and is now on appeal to the Fourth Circuit Court of Appeals.

For more about the controversial provision of the FISA Amendments Act under which the NSA is conducting electronic surveillance of Wikimedia Foundation and others (known as section 702), read Jennifer Granick on this blog, and at Just Security.

The Saga of Julian Assange - The New York Times 20160207

The Saga of Julian Assange - The New York Times 20160207

Julian Assange


The curious case of Julian Assange got curiouser last week when a United Nations rights panel concluded that the WikiLeaks founder has been “arbitrarily detained” by Britain and Sweden for more than five years, including the past three and a half years that he has been holed up as a diplomatic refugee in the Ecuadorean Embassy in London. The finding, which is not legally enforceable, was “ridiculous,” responded the British foreign secretary, Philip Hammond. But then so is much else in this convoluted saga, which should be drawn to a close.

Mr. Assange, 44, a onetime computer hacker with an Australian passport, has spent those five years fighting or evading British efforts to extradite him to Sweden, which says it wants to question him about accusations of rape. Mr. Assange and his backers say what is really going on is an attempt to extradite him to the United States to face charges for WikiLeaks’s role in receiving and publishing tens of thousands of secret American military and diplomatic cables in 2010. The New York Times and The Guardian also published many of the cables. Neither Sweden nor the United States has filed formal charges against Mr. Assange.

On Friday, the five-member United Nations “working group on arbitrary detention,” which is under the High Commissioner for Human Rights, and to which Mr. Assange appealed, declared that his ordeal amounted to being “subjected to different forms of deprivation,” which were arbitrary because of the “lack of diligence” by Swedish prosecutors.

Though Swedish prosecutors have said they only want to question Mr. Assange, they insisted that this must take place in Sweden — until last March, when they changed their mind and said they were willing to go to London. They haven’t yet, though Mr. Assange has said all along he’s agreeable to an interrogation there.

The United States also has not filed formal charges against Mr. Assange and what they would charge him with is not clear. In the end, the United Nations ruling, dubious as it may seem, might offer a way for Sweden and Britain to walk away from a case that has not made much sense from the outset.

Think the Liberals will rein in the spy services? Don’t bet money on it - iPolitics 20160129

Think the Liberals will rein in the spy services? Don’t bet money on it - iPolitics 20160129

Public Safety Minister Ralph Goodale. iPolitics/Matthew Usherwood
Public Safety Minister Ralph Goodale.

Let’s get something out of the way right now: The so-called ‘review’ bodies that report once a year on what Canada’s spies are up to are a joke. They’ve been a joke for quite a long time.

Proving the point, the federal government yesterday released an annual report from the tiny, inexperienced, underfunded, easily intimidated, easily befuddled, largely part-time outfits known as the Security Intelligence Review Committee (SIRC) and the Office of the Communications Security Establishment Commissioner.

Taken together, all the bureaucratic mumbo jumbo in these reports can be reduced to this: Our spooks often can’t account for, or keep track of, their secrets. Oh, and by the way, they had to break a few eggs (ie: laws) and they may have been keeping at least one minister out of the loop on what they were up to.

This kind of institutional contempt for the law and ministerial responsibility has been standard operating procedure at CSIS and CSE for decades — notwithstanding whether the politicians nominally in charge have been Liberals or Conservatives.

Since the mid 1990s, I have been reporting on how CSIS and the CSE have treated the law like a minor irritant. That, years later, politicians are expressing varying degrees of shock at these latest revelations only suggests they’ve been in a self-induced coma.

Exhibit A: SIRC expressed concern that CSIS may have been unilaterally withholding information from the Public Safety minister about “activities with a potential to have an adverse impact on Canadian interests.” As a result, SIRC warned, the minister “runs the risk of being insufficiently apprised, even of higher-risk CSIS activities, and therefore prevented from taking appropriate corrective action.”

Translation: CSIS doesn’t tell the minister about sensitive stuff he really should know about, preventing him from doing his job — either by shutting down dubious activities or by acting to limit the potential fallout.

Turn back the clock to 2002, when my book on CSIS, Covert Entry, was published. It included a lengthy interview with David Peel, inspector general over the spy service until the late 1990s. The distinguished ex-diplomat kept tabs on CSIS for the cabinet minister responsible for the spy service. (Stephen Harper shuttered the IG’s office in 2012.)

Peel told me that CSIS’s leadership often left its political masters in the dark about what the service was up to, despite explicit, written instructions to the effect that CSIS’s director had to keep the minister responsible for the service abreast of its clandestine work.

If anyone believes that the current Liberal government has the political will or spine to change the way CSIS and CSE go about their shadowy business — to create real, robust oversight over our espionage services — the joke’s on them.

“Part of my problem with (the director) was that I didn’t think that he was keeping the minister well enough informed about issues and problems and what the service was doing where the minister had, in general terms, given directives that he wanted to be kept informed about such things,” said Peel, who died in 2009.

Exhibit B: SIRC gently scolded CSIS for not doing enough to plug possible leaks of highly classified information by “malicious internal actor(s).” It described the current practice as “haphazard.”

I devoted a chapter of my book to a story, confirmed by several named sources, about a drug-addicted senior CSIS officer who turned over a briefcase brimming with counter-intelligence and counter-terrorism files — including the identities of targets — to a heroin dealer turned unimpeachable police informant. The officer has since retired comfortably and no one, to my knowledge, has ever gone after that “malicious internal actor.”

And then there’s the story of Tony Iachetta, a Mountie turned CSIS officer. A rising star working out of Edmonton, Iachetta slipped in and out of debilitating depressions. Ultimately, he committed suicide. After his death, CSIS found that Iachetta had socked away a trove of top secret documents at his home.

My iPolitics colleague Jeff Sallot and I wrote a story in early 2000 exploring theories about how Iachetta may also have been a “malicious internal actor.” CSIS and others wrote “lessons-learned” reports about the security lapse that were designed to plug the leaks. Clearly, nobody read them.

In another front-page story, Sallot and I revealed the theft by a trio of drug addicts of the spy service’s operational “crown jewels.” One lowly CSIS officer lost her job over what the spy service conceded at the time was the most serious security breach in the agency’s history. That’s about as far as the “accountability” went.

Exhibit C: SIRC discovered that CSIS repeatedly obtained confidential tax information without warrants and that, despite assurances that it would destroy the information, the service kept it.

I have reported in the past about how the spy service has opened mail without warrants, how it pressured its in-house chief psychologist to divulge the supposedly sacrosanct medical and psychiatric records of its own employees to senior CSIS managers (he refused).

I’ve written about Jean Luc Marchessault, a veteran CSIS officer who was hounded out of his job after his manager illegally obtained and subsequently destroyed personal information about him, including his medical and psychological records. Marchessault fought his dismissal (unsuccessfully) by complaining, in part, to then Privacy Commissioner and ex-journalist, Bruce Phillips.

Phillips found in June 2000 that CSIS had indeed broken the law. In his five-page ruling, Phillips told the former officer that he could take some solace in knowing that the ruling “may” prevent CSIS from breaking the law in the future. He wrote: “Unfortunately, my findings do not change the fact that another individual was made aware of your personal information. You may, however, find some satisfaction in knowing that as a result of your complaint, others may be spared from having their privacy invaded.”

Now CSE Commissioner and retired judge Jean-Pierre Plouffe has finally seen the release of a long-buried and damning report showing that CSE spied on Canadians illegally and that the agency shared that information with other governments and our allies.

Canadians should thank a brave, accomplished former CSE analyst, Jane Shorten, for blowing the whistle way back in 1995 about how CSE was illegally listening in on Canadians in Canada. Her courage spurred the Liberal government of the day to establish the commissioner’s office. Without Shorten, there would be no Plouffe, anemic as his efforts have been.

Finally, if anyone believes that the current Liberal government has the political will or spine to change the way CSIS and CSE go about their shadowy business — to create real, robust oversight over our espionage services — the joke’s on them.

They ought to translate this into Latin and make it the joint CSIS/CSE motto: Lie, deny … then act surprised if you get caught.

Andrew Mitrovica is a writer and journalism instructor. For much of his career, Andrew was an investigative reporter for a variety of news organizations and publications including the CBC’s fifth estate, CTV’s W5, CTV National News — where he was the network’s chief investigative producer — the Walrus magazine and the Globe and Mail, where he was a member of the newspaper’s investigative unit. During the course of his 23-year career, Andrew has won numerous national and international awards for his investigative work.