Understanding surveillance technology
Has the time come for the bench and the bar get a crash course in spying technology?
That’s a pretty clear take-away after a presentation on privacy and surveillance from Doug King, the police accountability campaigner at Pivot Legal.
King was speaking at the Canadian Constitution Foundation’s Law and Freedom Conference on Saturday, briefing the lawyers in the room on how police across Canada have deployed the powerful Stingray surveillance devices.
Pivot Legal and King have been pushing freedom of information requests in British Columbia to try and unearth how the Vancouver Police Department has used the Stingray devices — which mimic cellphone towers, tricking all or most phones in an area to joining a fake network and surrendering identifying information and metadata — which finally helped prove that Vancouver had been using the RCMP’s devices.
The RCMP have been prolific in their use of the devices to track suspect’s phones, even when it means scraping cellphone data from dozens, hundreds, or even thousands of unrelated third parties in the process.
That trove of data, police have admitted, could be used in future investigations.
The use of these devices is often approved through general warrants, and there are few cases where the courts have delved deep into the usage of these machines — and their limitations.
“We have to wonder whether our judiciary — or our bar, generally — is really up to the high level of knowledge [required],” King told the room in Toronto over the weekend.
This journalist previously reported that the RCMP had kept sensitive data about these devices out of their court disclosure documents, even away from the judge, and only coughed up the relevant context once pushed by defense counsel.
Even still, the RCMP and local police are remarkably tight-lipped about these devices — refusing to confirm the make, model, or even the capabilities of these powerful tools.
“One of the problems of our judicial system, too, when we talk about warrants — they’re inherently secret,” said King.
Clayton Rice, who has followed the use of Stingrays extensively in recent years, came to a similar conclusion.
“Disclosure of the use of cell site simulators in Canada is a precondition to meaningful debate – in public, in the courts and among lawmakers – in order to ensure that the use of invasive technology is in compliance with section 8 of the Charter of Rights and Freedoms that protects all Canadians from unreasonable search and seizure,” Rice wrote on his blog this past summer.
A Charter case will likely come around at some point. it’s just a matter of time.
“It isn’t just about individual rights, it is about the privacy rights of everyone involved,” he says. That “surveillance in the background” is something the courts ought to put a damper on.
But the lack of technical understanding, and a lack of disclosure, can make that hard.
In the most illuminating case thus far — a murder trial in Quebec resulting from the RCMP’s Operation Clemenza — the court spent weeks of hearings in order to try and grasp the huge amount of technical considerations surrounding the device, with the help of an amicus curiae.
But much of that information was heard ex parte and remains sealed.
Neither the RCMP nor the federal government seems intent on opening this surveillance technique at all, and it may ultimately fall onto defense lawyers to try and ferret out more information about these devices and maybe even to encourage the courts to apply contraints to their use.
King sums it up succinctly: “Surveillance should start once you do something wrong.”
Justin Ling is a regular contributor based in Toronto.