Recently tabled legislation in Canada enables CSIS to seek warrants authorizing the service to engage in the surveillance of Canadians abroad. Craig Forcese explains the legislation:
......would permit CSIS to seek and obtain a warrant from the Federal Court for overseas investigations. And "[w]ithout regard to any other law, including that of any foreign state, a judge may, in a warrant issued under subsection (3), authorize activities outside Canada to enable the Service to investigate a threat to the security of Canada."Forcese adds that Parliament is allowed to legislate violations of international law.
This reverses the other aspect of Blanchard J's decision: his refusal to authorize a warrant where to do so might violate international law (namely, the sovereignty of another country). After all, what we are really talking about with covert surveillance, some of which may be so covert the territorial state is unaware of it. And that may violate that foreign state's law, and by extension is sovereignty. The latter would violate international law.
Meanwhile in the U.S. the FBI is seeking new powers related to how search warrants on granted and executed:
......would allow a judge to issue warrants to gain “remote access” to computers “located within or outside that district” (emphasis added) in cases in which the “district where the media or information is located has been concealed through technological means”. The expanded powers to stray across district boundaries would apply to any criminal investigation, not just to terrorist cases as at present.Apparently the FBI accepts applying the 4th amendment standard to requests for warrants even if the searches would be conducted on computers located abroad. Ahmed Ghapour tells the Guardian that:
“for the first time the courts will be asked to issue warrants allowing searches outside the country”.
He warned that the diplomatic consequences could be serious, with short-term FBI investigations undermining the long-term international relationship building of the US state department. “In the age of cyber attacks, this sort of thing can scale up pretty quickly.”