The Communications Security Establishment (CSE) Commissioner provides independent scrutiny of the lawfulness of CSE's activities. This mandate is set out in Part V.1 of the National Defence Act, which provides both a general and a specific review mandate. The general mandate concerns the overall lawfulness of CSE's activities, while the specific mandate concerns CSE activities carried out under ministerial authorization.
Since CSE's mandate relates to collecting foreign intelligence and protecting government information, it is normally prohibited from intercepting any communication in which one of the participants in the communication is in Canada. However, the National Defence Act (Part V.1) allows the Minister of National Defence to give CSE written ministerial authorization to intercept private communications for the purpose of obtaining foreign intelligence or protecting the computer systems or networks of the Government of Canada from mischief, unauthorized use or interference. In each case, the law specifies the conditions under which ministerial authorizations can be issued. The law also directs the CSE Commissioner to review activities carried out under a ministerial authorization and to report annually to the Minister of Defence on the review.
To carry out this review mandate, the Commissioner and his staff have access CSE's information holdings. This allows them to determine whether CSE acts in accordance with the fundamental principles of lawfulness and privacy.
The Commissioner fulfils his mandate by thoroughly reviewing CSE activities, using a variety of methods to assess whether the activities comply with the law: monitoring CSE's control and accountability mechanisms; scrutinizing CSE's policies and procedures and how they are applied; reviewing its programs for training employees about policies and procedures; reviewing internal investigations and complaints within CSE; reviewing CSE's use and retention of information it collects; and reviewing CSE's use of technology to minimize the collection of information that does not advance its foreign intelligence mandate and to safeguard the privacy of Canadians.
The Commissioner reports the results of all review activities in a public annual report to the Minister of National Defence. The Minister tables this report in Parliament.
The Commissioner is not the sole authority examining the activities of CSE. Others, such as the Canadian Human Rights Commission, the Privacy Commissioner, the Information Commissioner, the Commissioner of Official Languages, and the Auditor General of Canada, look at aspects of CSE's activities. The CSE Commissioner may rely on their findings to the extent that they are relevant to his mandate.