Annex G: Legislative Safeguards for Private Communications and Measures to Protect Information about Canadians

In the execution of its foreign intelligence and information technology security mandates, CSEC is expressly prohibited pursuant to paragraph 273.64(2)(a) of the National Defence Act from directing its activities at Canadian citizens, permanent residents or corporations, regardless of their location. CSEC is also prohibited from directing its activities at any person in Canada, regardless of their nationality.

However, due to the manner in which communications are transmitted, CSEC may, while conducting its mandated foreign signals intelligence or information technology security activities, unintentionally intercept communications of Canadians or persons in Canada, which constitute "private communications" under section 183 of the Criminal Code.

Recognizing this possibility, the National Defence Act allows the Minister of National Defence to authorize CSEC to intercept private communications. Prior to granting this authorization, however, the Minister must be satisfied that certain conditions set out in the National Defence Act are met. There are four conditions for foreign signals intelligence ministerial authorizations (subsection 273.65(2)) and five conditions for information technology security ministerial authorizations (subsection 273.65(4)).

CSEC's foreign signals intelligence and information technology security reports may contain information about Canadians (as defined in section 273.61 of the National Defence Act) if such information is deemed essential to the understanding of the reports. However, this information must be suppressed, that is replaced by a generic reference such as "a named Canadian" person or company. When receiving a subsequent request for disclosure of the details of the suppressed information, CSEC must verify that the requesting government department or agency has both the authority and operational justification for obtaining such information. Only then may CSEC provide this information.

The provision of assistance to federal law enforcement and security agencies under paragraph 273.64(1)(c) of the National Defence Act is not subject to the statutory prohibition contained in paragraph 273.64(2)(a) of the National Defence Act against directing activities at Canadians located anywhere or at persons located in Canada, provided that the assisted agency has the lawful authority. CSEC is also subject pursuant to subsection 273.64(3) of the National Defence Act to any limitations imposed by law on the assisted agency in the performance of its duties.