BCCLA Files Class Action for Spying by CSEC

The British Columbia Civil Liberties Association recently filed a class action in Federal Court over the actions by Communications Security Establishment Canada (CSEC).

The statutory scheme under ss. 273.65, 273.68 and 273.7 under the National Defence A empowers CSEC to monitor communications for foreign entities, not Canadians, absent written authorization for unintended interceptions. Revelations earlier this year demonstrated that CSEC had monitored wireless devices at Canadian airports.

The claim seeks a declaratory relief of a finding of a violation of s. 8 of the Charter for the actions of CSEC. The claim takes particular issue with the collection of metadata, which it claims is potentially even be more revealing than the contents of private communications because it allows for a profile to be created of the individuals involved,

40. …Class Members have a reasonable expectation that Canada will not collect, analyze, retain, use, and/or distribute internationally metadata associated with or produced by them as such reveals private and confidential information about them.

41. CSEC’s collection, analysis, retention and/or use of metadata in accordance with the Directives is not authorized by law and constitutes a breach of s. 8 of the Charter…

42. The defendant, through CSEC, has routinely violated the privacy rights of Class Members in a methodical and systematic manner. The particulars of these violations are known to the defendant and should be produced.

The communications involved are protected by s. 2(b) of the Charter according to the claim, and the breach cannot be saved by s. 1.

The biggest problem that certification may face is that the representative class is framed extremely broadly,

a. Canadian citizens, permanent residents within the meaning of s. 2(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. F-7, and bodies corporate incorporated and continued under the laws of Canada or a province who have used one or more Wireless Devices since 2001; and

b. individuals who do not fall within subparagraph (a) but have used one or more Wireless Devices in Canada since 2001

Josh Paterson, executive director for the BCCLA explained to the Toronto Star the reason for framing the claim in this manner,

It’s certainly a large class of people, that’s for sure, but we also can’t be entirely sure who in Canada, which specific people have been targeted by this kind of electronic spying.

If this injustice has been committed . . . there does need to be some kind of remedy.