Mandate of the Communications Security Establishment Commissioner
Overview
- My mandate (and CSEC's) is set out in Part V.1 of the National Defence Act.
- I operate at arms-length from government.
- I submit detailed classified reports of my reviews of CSEC to the Minister of National Defence.
- My recommendations aim to reduce risks of non-compliance with the law by CSEC and to strengthen its practices to protect the privacy of Canadians.
My mandate under the National Defence Act consists of three key functions:
- reviewing CSEC activities to ensure they comply with the law;
- conducting investigations I deem necessary in response to complaints about CSEC; and
- informing the Minister of National Defence and the Attorney General of Canada of any CSEC activities that I believe may not be in compliance with the law.
Under the Security of Information Act, I also have a mandate to receive information from persons who are permanently bound to secrecy if they believe it is in the public interest to release special operational information of CSEC. To date, no such matters have been reported to a Commissioner.
Reviewing CSEC activities
The purpose of my review mandate is:
- to ensure that activities conducted by CSEC under ministerial authorization are, in fact, those authorized by the Minister of National Defence;
- to ensure that CSEC complies with the law and, if I believe that it may not be complying, to report this to the Minister of National Defence and to the Attorney General of Canada;
- to ensure that CSEC does not direct its foreign signals intelligence and information technology (IT) security activities at Canadians; and
- to ensure that CSEC develops and effectively applies satisfactory measures to protect the privacy of Canadians in all the activities it undertakes.
Conducting investigations
My mandate includes undertaking any investigation I deem necessary in response to a written complaint — for example to determine whether CSEC has engaged, or is engaging, in unlawful activity or is not taking sufficient measures to protect the privacy of Canadians.
Once a written complaint is received, if I determine that it has merit and relates to my mandate, I have all the powers of a Commissioner under Part II of the Inquiries Act to access and review any information held by CSEC. I may also interview — under oath, if necessary — any CSEC employee to establish the facts concerning a complaint. I advise the complainant, the Minister of National Defence and the Chief of CSEC about the results of a formal complaint investigation. If I believe that CSEC may not have complied with the law, I would report this to the Minister and to the Attorney General of Canada.
Informing the Minister
Under my mandate, I also:
- report the results of my reviews, in classified reports, to the Minister of National Defence, who is accountable to Parliament for CSEC; and
- am required to submit an unclassified report to the Minister of National Defence on my activities each year, which the Minister must then table in Parliament. This is the 16th annual report.
My reviews focus on CSEC's compliance with its legal, ministerial and policy requirements. While it is my primary duty to report any non-compliance by CSEC, a necessary element of my mandate also includes informing CSEC of any activities that I believe might present, or have the potential to present, a risk of non-compliance, such as an unlawful interception of a private communication or other invasion of the privacy of a Canadian. If I am not satisfied that CSEC is responding to my concerns appropriately, I have the authority and the duty to report them to the Minister of National Defence. A number of my reports have included recommendations aimed at prevention. It is my goal to strengthen CSEC practices that contribute to compliance and incorporate measures that protect the privacy of Canadians. I believe it is ultimately more useful to prevent unlawful activity than to identify it after the fact.
Independence
While I submit my reports to the Minister responsible for CSEC, my office is independent and separate from the Department of National Defence. My review mandate is supported by the powers I have under the Inquiries Act. These powers ensure my access to all CSEC information and employees and include the power of subpoena. The independence of my mandate is further supported by the way my office is funded — it has been allocated its own appropriation from Parliament rather than receiving funding from the Department of National Defence.
Annex A contains the text of the relevant sections of the National Defence Act and the Security of Information Act relating to my role and mandate as CSE Commissioner. Annex B describes the history of the Office of the CSE Commissioner.
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