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Opinion: What happens to those who leak classified information? Sometimes nothing

Commentary

Recent events have shone a bright light on the unauthorised disclosure of classified information in Canada. While one person’s glory-seeking malcontent is another’s noble whistleblower, much has been made of the risk taken by those who have spoken to media about classified matters—and possibly even permitted journalists to read classified material. 

In Canada, not all classified information is created equal, nor are the consequences for divulging that information all the same. Ranging from information which is Protected (the release of which would be injurious to an individual) to Top Secret material containing Special Operational Information (the kind of information that, if leaked, could reveal identities, methods, and plans related to intelligence and military operations), Canada’s information classification system is broad, misunderstood, and often misapplied—even within government where “over-classification” is common.

The Criminal Code

In terms of offences under Canada’s Criminal Code, only one is directly applicable: s. 122. But to find unauthorized disclosure under this section, a judge would have to rule that the leaked information was itself property, provided under circumstances in which a trust (i.e., a duty to hold the information in confidence) existed, and the accused received a benefit from the disclosure. 

The Security of Information Act

It is more likely that a prosecutor would bring a case under a law designed to govern the particular circumstances of leaking a document: the Security of Information Act (SOIA). There are three relevant offences under that law:

  1. Wrongful communication of a secret article, note, document, or information (s. 4 of SOIA);Punishable pursuant to s. 27. May proceed by indictment subject to imprisonment of a term of up to 14 years or by summary conviction and then punishable by a term of imprisonment of not more than 12 months, a fine of not more than $2,000, or both.
  2. Intentional unauthorized communication or confirmation, by a person permanently bound to secrecy, of information that, if it were true, would be special operational information; (s. 13) and/or,Punishable pursuant to s. 13(3). Indictable offence subject to imprisonment for a term of up to five years less a day.
  3. Intentional unauthorized communication or confirmation, by a person permanently bound to secrecy, of special operational information (s.14).Punishable pursuant to s. 14(2). Indictable offence subject to imprisonment for a term of up to 14 years.

Special Operational Information (SOI) is defined in s. 8(1). It includes, among other types of information:

  • The identity of a source of information or intelligence
  • Methods and capabilities of collection, analysis, reporting or communication of information
  • Whether a person or place was or is intended to be the target of covert collection of information or intelligence.

A person permanently bound to secrecy under SOIA s. 8(1) includes:

  • Employees of, among others, the following agencies:See Schedule to Security of Information Act.
    • Canadian Security Intelligence Service
    • Communications Security Establishment
    • Privy Council Office Foreign and Defence Policy Secretariat, Intelligence Assessment Secretariat, and, Security and Intelligence Secretariat
    • National Security and Intelligence Review Agency Secretariat
    • Secretariat of the National Security and Intelligence Committee of Parliamentarians
  • Individuals designated by a deputy head, pursuant to s. 10(1) of SOIA, as being permanently bound to secrecy.

As such, it really matters what the precise nature of the information released really was and who did the leaking. If it was SOI, the penalty could be severe. But in all other instances, lesser punishments—or no punishment at all beyond losing one’s job—might be the outcome. Of course, all of this presupposes that a leaker can be caught. The reality for anyone who has tried to catch a leaker is that it’s a bit like catching a witch: success is very elusive and the effort produces a lot of collateral damage.  

What about those who leak ‘in the public interest’? 

A person charged with disclosing SOI may claim the disclosure was in the public interest. But that defence is only available under limited circumstances. The leaker must be acting for the purpose of disclosing an offence under an act of Parliament and the public interest in disclosure must outweigh the public interest in non-disclosure. More importantly, the defence is only available if the leaker has:

  • brought the information to the attention of his Deputy Head or the Deputy Attorney General; or
  • brought the information to the National Security and Intelligence Review Agency.

Most unauthorized disclosures will not involve SOI. They will instead involve an unauthorized disclosure of a secret article, note, or document. This type of disclosure will lead to a charge of a breach of s. 4 of SOIA. And unfortunately for the leaker, the public interest defence is not available to a person charged under this section.

The information contained in the stories written by Messrs. Fife and Chase regarding Chinese influence operations is likely covered by s. 4 of SOIA. There does not appear to have been any disclosure of SOI. It is therefore unlikely that the public interest defence would be available to that source. 

The information contained in the stories written by Mr. Cooper may be SOI. It is plausible that the disclosure of information contained in these sources could reveal methods or capabilities of collection and analysis or the individual targets of a particular operation. If this threshold is met, then Mr. Cooper’s source may be able to use the public interest defence if that person took steps to bring the alleged breach of an act of Parliament (probably of the Elections Act) to the attention of the appropriate Deputy Head or NSIRA.

Leaking can be a perilous exercise, both for the leaker and the country. But punishment is not a certain thing. Experience teaches that even if an applicable law has been broken, catching a leaker can be an exercise in futility. That doesn’t mean it’s not worth pursuing, but a strong Plan B is required—one that weighs and measures how and why the leak occurred in the first place.

Matt Spoke: Don’t listen to the AI doomsayers

Commentary

As artificial intelligence (AI) becomes increasingly integrated into our society, we’ve seen a surge of criticism and fear-mongering around the technology. A few weeks ago, a group spearheaded by the Future of Life Institute, and supported by big names like Elon Musk, Steve Wozniak, and over 2,000 other signatories, penned an open letter calling for a six-month pause in the development of AI technologies. Similar letters were published in 2015 and 2018, signed by thousands of AI and robotics researchers. All three letters warn of the potential dangers of AI and call for caution in its development, and most recently a mandated pause. 

Now, every newspaper and online publication is filled with doomsayers singing from the same hymn sheet. A recent Substack post by Diane Francis particularly caught my attention.

While it’s true that there are certainly risks associated with AI, it’s important to recognize that all of these critics are overweighing these risks while completely ignoring the significant benefits that AI can provide to humanity.

Although it would be futile to try and predict the potential of AI and how industries will be reshaped in the decades to come, you don’t need much imagination to foresee its potential in industries and fields that are in desperate need of innovation. 

From medicine and health care to energy efficiency and abundance, AI can help solve some of the world’s most complex problems. It can aid in the discovery of new drugs, improve surgical precision, and enhance patient care. In energy, AI can optimize systems to reduce waste and increase efficiency, while also unlocking new ways of generating and storing energy. And in fields like transportation and logistics, AI can help reduce traffic, increase safety, and streamline supply chains.

All of these benefits without possibly conceiving of the industries it will help create. Rewind 25 years and try to imagine the industries made possible by the modern internet. A similar economic shift is coming, and humanity will stand to greatly benefit if we take full advantage.

Despite some of these clear benefits—and some of the undefined creative opportunities—many observers and commentators jump straight to the doom and gloom risks of AI, completely overlooking the obvious potential for meaningful life-improving innovation. For every “evil person” who might use AI for harm, there are 100,000 good people looking to use it for good. It’s also worth noting that any risks posed by AI can ironically be most effectively mitigated by using AI itself. 

Take the often-used example of a DNA sequence of a deadly disease, created by AI, and sent to a lab for production to infect humanity. In this dystopian scenario, how better to counter that risk than with powerful AI tools for detection, prevention, and cure? In order for those positive tools to be built and available to us, we need to allow the responsible use of AI in fields like medicine and immunology today.

The recent global COVID-19 pandemic is a good example of the potential benefits AI could have represented. While the virus may have originated naturally, powerful AI tools (if they existed at the time) could have been used to better understand the virus, predict its possible evolutionary paths, and identify effective treatments and cures faster. As we continue to face similar global crises in the future, we’ll need to rely on AI to help us navigate and overcome them.

All this said, I won’t ignore the risks associated with the development and use of AI. Critics have pointed to job displacement, privacy concerns, and the potential for AI to be weaponized by governments or malicious actors. These risks are real, but they can be effectively managed and mitigated through responsible development, ethical guidelines, and transparency. We need to establish clear ethical standards for the development and use of AI, but this should be done in a way that emphasizes human prosperity and flourishing, rather than stifling innovation. In short, any effort that calls on government intervention in this field, rather than industry-led standards, should be looked at with skepticism.

It’s important that we don’t let fear and pessimism prevent us from realizing the full potential of AI. Governments and politicians should be cautious not to act too quickly and reactively to fears on the topic. Instead, they should be looking inward to see where AI can be used to augment their own capabilities in delivering services to their citizens. Countries that rush to constrain or ban AI development will ultimately lose out in the long-term cycle of innovation. We’ve already seen this trend starting with some notable European countries moving to ban AI tools like ChatGPT.

Looking inward to the opportunity this presents for Canada, we need to be extremely thoughtful in how we approach this topic as a country this decade. Canada already stands out as a known hub for AI research and education and should have a unique opportunity to play a significant role in shaping the future of AI. If Canada seizes this once-in-a-generation opportunity, it could fundamentally improve the prosperity of our country. Particularly while Canada suffers from stagnating economic growth, we’ll need a new wave of productivity to get us out of the rut we’ve been in for some time. 

AI might be the catalyst of Canadian economic growth that we need.