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Canada’s spies aren’t above Canada’s laws

Justice Simon Noël of the Federal Court of Canada's severe decision on the Canadian Security Intelligence Service may be 137 pages long – but it gets at the basics of what it means to live in a liberal, rule-of-law society.

CSIS was set up a generation ago so that RCMP officers would no longer be able to break the law while trying to act like the CIA. It was designed to be a professional, legal intelligence agency for Canada – with a law providing for court supervision.

The Federal Court's recent decision, replete with blacked-out passages, is about "associated data." CSIS is intended to prevent threats to Canada, and it collects information to do so.

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The trick is to disentangle information about those threats from anodyne information that arrives in the company of unthreatening data. It may take time to figure out which is which. In the CSIS dialect, information that isn't about threats has come to be called "associated data."

But there is a human tendency to gather things up, just in case they come in handy some time. So CSIS has had a "retention program," supposed to sort out which is which, to be weeded out in a sensible way. The path of least resistance, however, is to accumulate more and more, so that many harmless, unknowing Canadians became "associated data" in CSIS's vast information junkyard.

Some of the so-called associated data included "specific intimate insights into the lifestyle and personal choices of individuals."

It turns out that for years, CSIS failed to keep its supervising Federal Court judges up to date on all that it was gathering and warehousing – but CSIS wanted to be absolved anyway. The decision of the Federal Court shows how aghast the judges were when the true situation emerged at last. It's fair to say the court felt betrayed.

The court's job was to keep CSIS's actions within the law. But CSIS didn't fully reveal to the court what it was up to – and some of it turns out to have been outside the law.

Public Safety Minister Ralph Goodale is right to say the government will not appeal the judgment. It remains to be seen how CSIS will get rid its huge information dump.

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