We Should All Be Very Concerned

Given the authorities' recent success in thwarting Aaron Driver's plans for a terrorist attack, I suspect that most Canadians are not too concerned about protecting their privacy rights. The fact that existing laws, legal surveillance and a timely tip from the FBI were responsible for stopping him should, however, be uppermost in our minds as a recent resolution by Canada's police chiefs and technology that allows for indiscriminate eavesdropping are now in the news.

Canada’s police chiefs want a new law that would force people to hand over their electronic passwords with a judge’s consent.

The Canadian Association of Chiefs of Police has passed a resolution calling for the legal measure to unlock digital evidence, saying criminals increasingly use encryption to hide illicit activities.

This law, by the way, would involve unfettered access to all electronic devices that are password-protected, including computers, tablets and cellphones, something that many would argue the state has absolutely no right to.

Thanks to some sleuthing done by my son, who sent me a series of links, you might also be shocked to know that our privacy rights are already being regularly violated by police in what would, in the old days, be called 'fishing expeditions.'

Motherboard reports the following:

The Edmonton Police Service owns a controversial surveillance device called a “Stingray” that indiscriminately surveils any cellphone within its multi-kilometre range, a police spokesperson confirmed on Thursday to Motherboard.

Previously the exclusive domain of the RCMP, these devices

force any phones within a target radius [usually several kilometers] to connect to the device and transmit identifying information. When a phone is caught by a Stingray, the police obtain the phone and SIM card IDs, as well as its location and service carrier. More recent Stingray devices are capable of intercepting voice and text communications. Stingrays surveil phones indiscriminately, leading some commentators to label them as “mass surveillance” devices.

Queries to a several other major police services were met with refusals to acknowledge their use, and now the Edmonton police are trying to backtrack. Police spokeswoman Anna Batchelor has issued a'retraction,' saying that

“there was some miscommunication/misunderstanding internally surrounding the information obtained on whether the EPS owns a StingRay, and in fact, the EPS does not own a StingRay device.”

She said it was police policy not to comment on “equipment used in electronic surveillance or on investigative techniques, therefore EPS cannot provide any further information on this topic.”

This feeble attempt at damage control should fool no one, nor should it lull us into a false sense of our privacy security. The problem is that we are currently dependent only on the honesty and goodwill of police departments to use such devices properly. For example, the Vancouver Police admit to using it only once, and records indicate that use was legitimate and authorized. But there are almost no legal safeguards to its legitimate deployment, as

we have absolutely no policy or regulatory response to police and intelligence agencies’ use of Stingrays despite the RCMP having had Stingrays for over a decade.

Contrast this lackadaisical approach with Germany, which has had federal regulation over such devices since 2002, stipulating the following:

-a warrant is required;

-Stingrays can only be used for investigation of serious crimes;

-Stingrays can only be used to determine suspects’ geo-location (not interception of communication’s content);

-the process must limit the collection of non-suspects’ data;

-non-suspects’ data cannot be used for any purpose other than confirming that it is non-suspects’ data and that this incidentally captured data must be deleted without delay;

-police use of Stingray is subject to reporting requirements for oversight and review.

Canadians, meanwhile, are being kept in the dark:

WE DO NOT KNOW whether warrants are always being sought or the nature of the warrants being applied for;

-WE DO NOT KNOW what judges are being told about the capacities of Stingrays with respect to the warrants being applied for;

-WE DO NOT KNOW if any minimization techniques are used to limit the collection of data of people who are not the targets of surveillance;

-WE DO NOT KNOW what is being done with the personal information of the thousands of people who are not the targets of legitimate police investigation.

Over the years I have tried to chronicle the myriad abuses of authority the police regularly engage in. In these fraught times, the temptation to take shortcuts, violate charter rights and generally abuse the citizenry is high. Now is not the time to give police even greater opportunity for intrusion into and violation of our lives. They need to work within tight and responsible constraints. To do otherwise should be unacceptable to all Canadians.