Parliamentary Committee Notes: Amendments to CSIS Act Warrant Authorities

Having a greater variety of investigative tools can enable CSIS to use the right tool, at the right time, to protect all Canadians. It can also ultimately be less intrusive overall because CSIS will not have to use multiple non-warranted techniques for extended periods of time, and because it will focus CSIS’ investigations to rule people out so CSIS can quickly focus on the right threat actors.

Federal Court approval is required for any activity that is more than minimally intrusive of privacy and the Court may impose any terms or conditions it deems appropriate.

Federal Court approval is required
  Federal Court Approval Investigative Necessity Ministerial Approval Authorizes Duration
Current S.21 Warrant  Yes Yes Yes
  • All investigative techniques, including interception.
  • Can use repeatedly.
  • Ongoing and future collection.
 Up to a year.
Preservation Order Yes No No
  • Requires a third party to preserve (notdestroy or delete) information or thing.
  • Does notauthorize any collection by CSIS.
 90 days.
Production Order Yes No Yes
  • Requires a third party to provide information to CSIS that is in their possession or control.
  • Does not authorize CSIS to deploy any investigative techniques.
  • Allows for judicial review.
 Determined by the Court.
Single-Use Warrant Yes No Yes
  • Single, one-off investigative technique.
  • Does notauthorize the interception of communications.
  • Does notauthorize ongoing collection of any kind.
 120 days or when the single activity is completed, whichever comes first.
Amendments to Existing Removal Yes No Yes
  • Amended to address the removal of a thing previously installed by CSIS with permission.
  • Amended to include the reasonable grounds to believe threshold (previously none).
  • Does notauthorize any collection by CSIS.
 Determined by the Court.
Amendments to Existing Removal Warrant Yes No

Yes

Tied to authorizations that require Ministerial approval
  • Not an authorization by itself.
  • Requires a third party to provide assistance to CSIS in executing existing warrant.
  • Amended to include the new single use warrant and the removal warrant.
 Tied to underlying authorization (120 days up to one year)

Gaps

Gaps being Addressed

CSIS cannotcurrently compel the preservation of perishable information.

CSIS does not have an appropriate tool to compel the production of information.

CSIS does not currently have a tool to perform a single collection activity to focus investigations.

Example: Preservation and production order

Most Internet service providers have policies requiring routine deletion of information. A preservation order from the Federal Court would authorize CSIS to require a provider to retain account information for an individual operating on behalf of a foreign state and observed to be posting mis- and disinformation about a candidate for mayor. This would prevent deletion.

Afterwards, CSIS would have to seek a production order from the Federal Court to require the internet provider to provide the account information to CSIS.

Production orders could also allow CSIS to acquire:

Investigative Necessity

CSIS’ current warrant authority requires that an application for a warrant demonstrates that other investigative techniques:

These elements are referred to as ‘investigative necessity’ requirements.

Example: Single use warrant

If there was a FI threat actor who is transiting through a Canadian airport, CSIS may only have a small window to examine their electronic device (eg. Smartphone) because they may be in Canada for only a few hours.

Currently, CSIS would have to establish investigative necessity to seek a warrant. This would be nearly impossible given the very short window to first use other investigative techniques such as interviews or surveillance. The single-use warrant would be the right tool for a one-time examination of their electronic device while the threat actor is in transit.

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