The Canadian Armed Forces’ counter-intelligence unit risks violating military members’ privacy rights by probing their computer activity without a warrant, a new report suggests.
The report follows on the independent National Security and Intelligence Review Agency’s 2021 findings that the unit was ill-equipped to handle the “active counter-intelligence threat” of white supremacy within the ranks.
The report, published by NSIRA Thursday, recommended the military suspend the counter-intelligence unit’s investigations of members’ computer use until it establishes a “reasonable legal authority” to do so.
“DND employees and CAF members have a reasonable expectation of privacy when using work computers for personal use,” the NSIRA report read.
But rather than getting a warrant to investigate suspected wrongdoing, the review agency found that the counter-intelligence unit “may be inappropriately relying on … CAF policies” even when members’ have a reasonable expectation of privacy for their online activities.
It’s another blow to the CAF’s counter-intelligence unit, a group established in 1997 and responsible for identifying and investigating security threats to military personnel and assets.
The unit acts like a military version of the Canadian Security Intelligence Service (CSIS), Canada’s domestic spy agency. But unlike CSIS, the counter-intelligence unit can only collect information if there is a connection to the Canadian Forces or the Department of National Defence (DND).
The unit focuses on serious threats to the CAF and DND, including terrorism and extremism, as well as organized crime, subversion or sabotage. But since its inception in 1997, 10 separate internal reviews into the unit found that it lacked resources and had strict policy limitations that resulted “in an inability to fully meet its mandate.”
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The NSIRA report is heavily censored due to national security and legal concerns, making it difficult to parse what the review body found out about how the counter-intelligence unit was probing members’ computer use.
But generally speaking, law enforcement and intelligence agencies in Canada need to obtain a warrant to collect information on Canadians that falls under Charter-protected rights to privacy.
“When (the unit) was created in 1997, the legal landscape with regard to the Charter was much different than it is today, and technology has expanded in a way that computers have become an all-encompassing tool,” the report read.
“In addition, surveillance capacity and techniques have evolved. The law has evolved accordingly to protect Charter rights by requiring the state to obtain specific judicial authorizations (warrants) where there is a reasonable expectation of privacy.”
Under DND policy, employees and CAF members can use work devices for specific personal purposes, such as communicating with family and friends, shopping for personal items, or accessing news sites.
Those activities can “generate revealing and meaningful private information” protected under the Charter, NSIRA suggested.
“NSIRA is concerned that (the unit) has not adequately considered their legal authorities to determine whether they have reasonable lawful authority to conduct warrantless searches for (counter-intelligence) purposes,” the report read.
The review released Thursday follows another NSIRA probe made public in 2022, which suggested the Force’s counter-intelligence and security units “have been organized into narrowly focused vertical silos that do not work together in an integrated manner.”
The counter-intelligence squad had a “narrow” set of security threats it focused on, NSIRA reported – infractions that rose beyond standard military discipline but fell below the threshold of criminal activity.
That narrow scope of counter-intelligence investigations led the review body to concluded the unit was “limited” in its ability to route out white supremacist groups within the CAF – which NSIRA called an “active counter-intelligence threat.”
“The presence of white supremacy within the Canadian military has been well documented,” the agency’s 2022 report read.
“White supremacists groups actively seek individuals with prior military training and experience, or conversely, encourage individuals to enlist in order to gain access to specialized training, tactics and equipment.”
The threat can’t be countered by the counter-intelligence unit alone, the report added, but noted that the unit “may not be fully utilized to proactively identify white supremacist” threats within DND and the CAF.
The 2022 report also found that the counter-intelligence unit’s investigations are lengthy, and delays “run contrary” to the unit’s mission to safeguard military personnel and assets.
In response to the 2022 NSIRA report, a spokesperson said DND was committed to giving the unit more resources to “optimize use of its lawful investigative capabilities.”
DND did not immediately respond to Global News’ request for comment Thursday.
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