A major investigative report by Brigitte Bureau of Radio Canada (CBC English language version here) has revealed what has long been suspected – that Canadian police forces are using IMSI Catchers to harvest substantial amounts of telecommunications data with uncertain oversight and no transparency. The issue is one that should trouble all Canadians, reminding us not to become complacent about the health of our free and democratic society.
The cell phones we carry with us are in constant quiet interaction with nearby cellphone towers – ensuring a quick connection when we need one. As part of this process, our phones communicate their unique identifiers to these towers. An IMSI catcher (also known as a Stingray) will simulate a cell phone tower and will encourage all cell phones in the area to communicate with it. As it does so, it harvests and stores these identifiers. In this way, data is collected about phones in the vicinity, which can, of course, be ultimately linked to specific individuals. Although a police force may deploy an IMSI catcher in the context of a specific investigation with a target suspect or suspects in mind, the harvesting of data is indiscriminate and will affect all individuals with cell phones in the vicinity. In cities, this can mean thousands of individuals at a time.
While it would be foolish to dismiss the importance of the role played by law enforcement and national security in our societies, it would be equally foolish to passively accept surveillance without the safeguards of oversight, transparency and accountability. The Criminal Code contains an entire section devoted to the rules that govern how law enforcement officials may carry out investigations, including detailed rules governing warrants for the interception of telecommunications, production orders for data, tracking warrants (including tracking of cell phones), and general warrants. These provisions require police to go before a judge or a justice of the peace to make their case for the surveillance, and to have the boundaries of the search established. This authorization procedure acts as a safeguard to ensure a proper balance between the rights of individuals and the collective interest, and to ensure that surveillance does not become routine, ubiquitous, and unrestrained. Unfortunately, there remain question marks around the application of these provisions to technologies such as IMSI catchers: some question whether a warrant is need at all (see discussion below); others argue that the technology merits a lower threshold for obtaining a warrant. In addition, it should be noted that there is no guarantee that any warrant obtained will specify what must happen to the data that is collected about individuals who are not the target of an investigation. In other words, there are no guarantees that such data will be destroyed once it is found not relevant to the particular investigation for which the warrant was obtained.
It has long been suspected that police forces in Canada have been using IMSI catchers in their investigations. Either because such use was being carried out without warrants, or because the warrants remained sealed from public view, this usage has been invisible to ordinary Canadians. It is also quite possible that much of this activity has taken place with no oversight at all. In fact, police forces have been evasive in responding to questions about IMSI catcher use. What the Radio Canada reports reveal is that IMSI catchers are in fact being used in Canada, and that such use is entirely non-transparent. We should be extremely concerned.
Arguments for obscurity around law enforcement use of IMSI catchers have two main threads. The first is that such devices do not impact privacy and therefore warrant neither transparency nor oversight measures. This is nonsense. The IMSI catchers are used in order to detect the location and movement of specific individuals. Beyond this, they capture a vast amount of data that can be used to detect the location and movement of anyone in the area of the IMSI catcher. This has privacy implications not just for those who are the targets of the police investigation but for all who are caught up in the dragnet. Without transparency and oversight no one will know what data about them has been collected by police, to what uses this data is put, or how long it will be retained. The second thread is the assertion that if police disclose what they are doing, the bad guys will stay one step ahead of them. However, it is fairly clear that those engaged in organized criminal activity are well aware of the existence and potential use of IMSI catchers. Transparency does not have to mean making public announcements that an IMSI catcher is currently in use in a particular location. Arguments that transparency will undermine investigations are spurious and should not be used to justify extensive covert use of surveillance technologies by police that impact on tens of thousands of ordinary citizens.
In August 2016, CIPPIC, the Munk School of Global Affairs and the Telecom Transparency Project issued a report (Gone Opaque? An Analysis of Hypothetical IMSI Catcher Overuse in Canada) on suspected but unconfirmed IMSI catcher use in Canada. The report provides a detailed overview of the technology, and examines how the use of IMSI catchers in other countries – including the United States – has been made more transparent and accountable. It is interesting to note that the growing body of law in the US that regulates IMSI catcher use evolved out of a similar cloud of deliberate evasion and obscurity that was brought to public attention by the activities of investigative journalists.
After reviewing the measures put in place in other jurisdictions to provide a legal framework for the use of IMSI catchers, the authors of Gone Opaque highlighted a number of legal safeguards that should be considered by Canadian policy makers. In the first place, the use of IMSI catchers should be subject to judicial oversight through the warrant provisions of the Criminal Code, and the threshold should be set to require police to demonstrate that they have reasonable and probably grounds to believe that an offence has or will be committed, as opposed to the much lower threshold of a “reasonable suspicion”. There should also be transparency mechanisms in place which can include statistical reporting on the incidence and scope of use, as well as the provision of some form of notification to all individuals who have been subject to IMSI catcher surveillance. Gone Opaque also discusses imposing proportionality measures such as limiting the use of IMSI catchers only to serious crimes or where other investigatory measures are not likely to be effective. There should also be limits placed on the scope of data collection, as well as on the retention and re-use of data – particularly data that is not related to the crime under investigation.
There is reason to be concerned that the covert use of IMSI catchers circumvents the safeguards put in place by Parliament in the Criminal Code. The provisions of the Criminal Code that deal with warrants and production orders in the context of data and telecommunications are far from perfect, but they do attempt to provide some measure of transparency and oversight when it comes to the exercise of state surveillance and tracking powers. To the extent that IMSI catchers are used in order to circumvent the Criminal Code procedures, and under the unjustifiable claim that they do not impact on privacy rights, Canadians should be outraged. Canadians should also demand much more when it comes to transparency and accountability around the warranted use of technologies that capture large quantities of personal information of ordinary individuals engaged in their daily activities.