Watchdog forces Canadian cops to reveal details of their phone surveillance program

Details of the Royal Canadian Mounted Police’s use of a highly controversial method of tracking suspects’ cellphones have emerged as a result of an investigation by Canada’s Privacy Commissioner.

In a report published on Thursday morning, provided to VICE News in advance, Commissioner Daniel Therrien reported that the RCMP had deployed the use of IMSI catchers in 125 different criminal investigations.

The commissioner concluded that, in six of those investigations, the RCMP had deployed the devices illegally by failing to acquire a warrant beforehand.

The report into the devices is the most extensive look into the federal police agency’s IMSI catcher program published to date. The investigation was spurred after community organization OpenMedia filed a complaint with the commissioner over the RCMP’s refusal to admit the existence of the program.

In the midst of the investigation, as the Privacy Commissioner began compiling details of the program, the RCMP finally admitted their use of the IMSI catchers in a briefing with a hand-picked list of journalists. (VICE News was not invited to that briefing.)

The devices, which the RCMP refers to as “mobile device identifiers,” or MDIs, but which are also known by the brand name Stingray, effectively mimic cell phone towers and work by tricking nearby cellphones into joining its network. Once the phones connect, the IMSI catcher scrapes two identifying numbers that can tie a person to their piece of hardware. In its direction-finding mode, it can be used to pinpoint the location and movement of suspects.

Running the IMSI catchers can interfere with any cellphones within kilometers of the device, disrupting their phone calls and potentially affecting their ability to place calls to 911.

Despite that, and the intrusive nature of the surveillance — which can also be used to physically track suspects — the RCMP concluded in the spring of 2015 that “it was not necessary to obtain judicial authorization prior to deploying an MDI.”

By June of that year, the RCMP had updated its policy, which recommended consulting with Crown lawyers “before making a decision to obtain or not obtain a general warrant.”

Since October of 2015, however, the RCMP has been using metadata warrants, which carry a relatively low judicial threshold.

Since it began using the devices, IMSI catcher use has been governed under an interim policy, as no formal rules have been adapted. Motherboard has taken a closer look at that interim policy.

The RCMP admitted in filings to the commissioner that it had deployed the IMSI catchers 125 times between 2011 and 2016: In 91 cases, the RCMP obtained a general warrant; in 22, it obtained a metadata warrant; in 13, it obtained no warrant at all. In one investigation, the RCMP obtained a warrant, but later concluded it was unnecessary.

In the 13 cases where it obtained no warrant, seven were under “exigent circumstances” — meaning someone was at risk of death or serious harm.

In 29 cases, the RCMP used the devices in conjunction with another agency, but the report does not disclose which agencies those are. (In one case, previously reported on by VICE News and Motherboard, the RCMP used the IMSI catchers alongside Quebec provincial police.)

Generally speaking, the Privacy Commissioners concluded that the RCMP used the devices legally.

“In the six instances in which MDI devices were deployed by the RCMP without prior judicial authorization or the presence of exigent circumstances, we do not believe that the collection of personal information in these cases was Charter-compliant,” the commissioner writes.

The RCMP did not contradict that argument. They did provide a copy of their policy to the commissioner, one that requires warrants be obtained before deploying the devices — unless there are exigent circumstances where there is no time to obtain a warrant.

The federal police agency also provided policies and briefings to the commissioner regarding its storage of the data collected through the IMSI catcher, allaying concerns that the data — which could include personal information on thousands, if not tens of thousands, of Canadians who were not suspected of a crime.

The Information Commissioner did, however, slam the RCMP’s secrecy on the surveillance technique. The RCMP had, until April, 2017, refused to confirm or deny their possession of the devices — even after VICE News confirmed the RCMP had obtained a license to use the devices and reported how RCMP officers detailed their usage in court, raising questions on the devices’ efficacy.

“This lack of transparency lead to serious concerns about the capabilities of these devices and how they are being used,” the report reads. “We strongly encourage the RCMP to continue to make efforts towards openness and accountability in terms of the technologies it employs in its law enforcement activities and the legal authorities it relies on for the use of those technologies.”

The RCMP released a statement on the report on Wednesday afternoon, prior to its publication.

The statement defends the use of the IMSI catchers, but highlights the commissioner’s findings that the RCMP — at least now — follow the letter of the law in using them.

The statement, from Joe Oliver, Acting Deputy Commissioner of the force, touted the RCMP’s decision to hold a closed-door briefing on the technology and committed to “continue to find ways to strike a balance between public transparency on the use of the technology, and at the same time, protecting this important tool for public safety and law enforcement purposes.”

The RCMP, however, contends that even releasing the brand name of the IMSI catcher would jeopardize police operations. It appealed a Quebec Superior Court decision ordering it to disclose details of the devices in a 2016 murder trial.

Laura Tribe, the Executive Director of OpenMedia — the advocacy group who launched the complaint — welcome the report but argued “we shouldn’t need such a lengthy investigation to get basic information about how the data of innocent Canadians is being collected and stored.”

Tribe said in a statement that Ottawa ought to be looking at more safeguards and laws governing how these devices are used. As the Privacy Commissioner lays out in the report, the RCMP relies either on a general warrant — generic warrants that are increasingly popular for high-tech surveillance practises — or tracking warrants, which only apply to one aspect of the devices’ capabilities.

Tribe concludes: “This is a pressing issue that must be taken up by the federal government when Parliament returns next week.”