Federal police in Canada may have lost the battle, but won the war, when it comes to keeping secret their ability to track cellphones, intercept messages, and decrypt messages sent by BlackBerry phones.
VICE News and Motherboard first reported in April that the Royal Canadian Mounted Police (RCMP) had obtained BlackBerry's global encryption key, and had used it to read millions of messages sent between seven men accused of murder, and a litany of other alleged mobsters who are accused of drug trafficking, kidnapping, and arson. Since then, we have fought to keep this information in the public domain.
But since then, Crown prosecutors have been fighting to put the genie back in the bottle, asserting that a vague, open-ended publication ban would forbid media from reporting the details of a case that, by the RCMP's own admission, involved the largest use ever of PIN to PIN interception technique in a major North American investigation.
On Friday, a judge in Laval, Quebec, rejected requests from both the Crown and the defense to extend the publication bans, and ordered that nearly all the information shall become public. The Crown, faced with representatives from the media filing to have the information rendered public, eventually retreated, and asked for only sections of the documents to be kept secret.
That the Crown was even seeking to extend the publication ban — even after securing convictions — is something "we don't normally see," said lawyer Christian Leblanc, who represented VICE and other media's push back against the government's efforts to suppress this information.
He cites a 2001 case where the Supreme Court clearly ruled that, after an investigation has concluded, the Crown has an obligation to make details of the investigation public.
The court wrote then that, barring evidence that publishing the information could put the lives of officers in danger, the information ought to become public — "It would be unwise for this Court to countenance the establishment of a permanently anonymous section of the police force," the unanimous court wrote.
In the end, on Friday, the Crown dropped their attempt to protect the sensitive information, but only after months of contending that Canadian media did not have the right to release information about the RCMP's expansive surveillance powers.
But while this fight may have unearthed otherwise-shadowy techniques employed by Canada's federal police force, much of the intricate and technical details around the powers used in this investigation are still redacted or withheld. Now that the case is over, there's little hope that information will ever see the light of day.
It's just the latest tactic from the government in a case that even saw the RCMP scrub its website of details pertaining to the large scale mob investigation, dubbed Operation Clemenza.
The RCMP have used court tactics to keep secret their investigative techniques for years, but have also denied access to information requests and omitted details about the technology they use in warrants filed to the court, in order to avoid having this information reach the public domain.
The RCMP contend that making this information public could give criminals a leg up on running counter-surveillance measures and avoiding detection.
But defense lawyers in this case argued the secrecy could hobble their clients' ability to receive a fair trial, while privacy advocates say the police are keeping the public in the dark on potentially unconstitutional spying powers.
This story is part of a joint investigation with Motherboard. Check them out for more details about how Canadian police surveilled Canadians for a decade with secret spy tech.
When the six co-accused first appeared in court, along with a seventh man who was accused of being an accessory after the fact, they immediately raised the question — how did the police obtain these communications? And how did they read them?
Initially, the RCMP and the Crown prosecutors refused to say. They went to a second court to begin fighting over exactly that question. From late 2014 into the end of 2015, the two sides grappled, with the Crown releasing dribs and drabs of information.
Eventually, the Quebec judge, Justice Michael Stober, began to push the investigators to reveal their information. The RCMP admitted that they had acquired BlackBerry's global encryption key. They gave oblique details about their ability to track and surveil cell phones in public areas. They surrendered information about their wiretap and interception operations.
But on many other fronts — such as where the encryption key came from, how the PIN-to-PIN messages had been intercepted, the reliability of the cell phone-tracking hardware — they continued to fight.
The Crown appealed an order from Stober, demanding they release this information.
Just before the police appeared at the Quebec Court of Appeal to continue the legal duelling, seven of the accused suddenly pleaded guilty to conspiracy to commit murder. The legal drama was over. The documents, redacted and incomplete as they were, would become public.
But, after VICE News and Motherboard published the details of how the RCMP had used the BlackBerry key, and after the Globe & Mail published information on other aspects of the agency's high-tech surveillance operations, the Crown prosecutor's office began calling media to inform them that a non-publication order had been filed — and suggested that they should remove their stories from the web.
And days after the VICE reports, details about Operation Clemenza on the RCMP website that boasted "over one million private messages were intercepted and analyzed as evidence using the PIN to PIN interception technique. This was the first time that this technique was used on such a large scale in a major investigation in North America" were removed.
Follow Justin Ling on Twitter: @justin_ling