Spy agency may have violated charter rights with polygraph tests

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OTTAWA — Canada’s electronic spy agency is using polygraphs in ways that may violate employees’ charter rights, deliver inaccurate results and compel them to disclose personal information, according to the National Security and Intelligence Review Agency (NSIRA).

NSIRA, one of the government’s independent intelligence watchdogs, released a review of the use of polygraphs by the Communications Security Establishment (CSE) to screen prospective employees and to regularly update their security clearances. NSIRA found the agency is overly reliant on polygraphs.

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“CSE placed an inordinate importance on the polygraph in security screening decision-making, to the extent that other, less intrusive security screening activities were insufficiently used or not used at all,” they said.

CSE collects signals intelligence from around the world and provides cybersecurity to government agencies. NSIRA’s report was given to the minister of defence in February this year and was made public Thursday after the National Post requested it through an access-to-information request.

Polygraphs have been used by the Canadian government for decades, including at CSE, CSIS and the RCMP. Since 2014, they have been used outside of the intelligence agencies as well as part of a broader standard developed by the Treasury Board, which is the ultimate employer of all federal bureaucrats.

Under that standard, CSE is not supposed to use multiple polygraphs to resolve any inconsistencies, but NSIRA found it does. CSE is also not supposed to use a failed polygraph as the only reason for denying a security clearance or making a hiring decision, but NSIRA found no examples where someone with a failed or inconclusive polygraph was able to get a security clearance.

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Polygraphs are not admissible in court and there is scientific debate about their effectiveness. NSIRA found that neither CSE or the Treasury Board could provide research that backed up using the devices.

“Both CSE and TBS stated that the reliability and efficacy of the polygraph when used in the security screening context is supported by valid scientific research. However neither CSE or TBS were able to produce any such studies,” reads the report.

NSIRA found much of the research supporting the use of polygraphs is written or supported by an American industry association that offers training programs on the device.

The watchdog also found that while CSE said their polygraph rules align with other Five Eyes intelligence agencies, that doesn’t appear to be the case.

“With the sole exception of the United States, which uses the polygraph extensively to conduct security screening, NSIRA could find no information to support the claim that the polygraph is used by any other member of the Five Eyes.”

In their formal response to the report, the Treasury Board heavily disputed NSIRA’s findings and said it will not abandon the use of polygraphs.

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“NSIRA is proposing to remove a security measure that has been in successful use for almost four decades, and that is applied to only a small fraction of the public service for protection of only the most sensitive information, with no consideration or mention of the current threat environment facing the Government of Canada,” they said.

In a statement, CSE insisted that the polygraph is just one part of the screening process, but a necessary one given the information CSE employees have access to.

“As an intelligence agency, our Enhanced Top Secret-cleared employees have access to sensitive information that, if compromised, could harm Canada’s defence or national security interests. Because of that, we carefully screen each person,” the statement said.

NSIRA found the polygraph tests could be a violation of the charter’s right to privacy.

They found that, while interviewees signed a waiver, the waiver didn’t provide all the necessary information, including details about the disputed science of polygraphs. NSIRA argued that if the charter and privacy issues they identified weren’t addressed urgently, CSE should stop using polygraphs altogether.

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CSE said the waiver interviewees sign makes clear that the machines are not perfect and that examiners are open to any questions they might have. The Treasury Board said they consulted on the charter issues and are confident the polygraphs are compliant.

“TBS is confident that the polygraph is an important and effective security screening tool and that its proper use is consistent with Canadian law and values.”

People undergoing a polygraph at CSE face two sets of questions, what NSIRA calls relevant and comparison questions. The relevant questions relate to espionage, support for extremism and information handling; these questions are scored during the exam.

The comparison questions relate more to honesty, self discipline and personal loyalty and are used only to compare to the answers on the relevant questions.

NSIRA reviewed 51 polygraph interviews and the corresponding security files and found examiners often started out genial, but turned aggressive if the results indicated any kind of deception or inconclusive results.

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They found that as examiners pressed further people being interviewed often became more stressed and shared information they didn’t need to share.

“Many subjects disclosed unnecessary and irrelevant information, including highly personal details of their private lives in order to respond to the polygraph examiner’s questions,” the NSIRA report reads.

They found in general the interviews were collecting far too much information.

“Information collected is over-broad and can be unrelated to furthering the assessment of criminality or loyalty to Canada,” the report said.

CSE disputed that and said their employees were more concerned about NSIRA reviewing their files than they were about having their employer access them.

“CSE is of the view that the statements in NSIRA’s report misrepresent the privacy concerns expressed by CSE employees during the course of the review. NSIRA disregarded CSE’s attempts to correct this factual inaccuracy at the draft report consultation stage of this review.”

National Post
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