Law Times

Page 4 OctOber 16, 2017 • Law times www.lawtimesnews.com No requirement to make information public Details around controversial surveillance unknown BY SHANNON KARI For Law Times H ow widely police in Ontario utilize con- troversial surveillance techniques that can capture private data from large numbers of non-targets in a criminal investigation is un- known, because there are no for- mal requirements to make the data public. Police in the province also ap- pear unwilling to provide many details about the use of these techniques, which is a cause for concern, say privacy advocates and criminal defence lawyers. Law Times submitted ques- tions to the Ontario Provincial Police and police services in Ot- tawa, Toronto, Peel, York and Durham regions, asking how many "tower dump" production orders were obtained in 2015 and 2016. They were also asked to dis- close how often International Mobile Subscriber Identity catch- ers (often referred to by the brand name Stingray) were utilized in that time period, as well as poli- cies related to the collection and retention of non-target data. Tower dump orders require service providers to disclose the names and addresses of sub- scribers, call data and location for everyone who used a mobile device near a specific cell tower during a certain time period. IMSI-catchers spoof cell towers and capture the unique identi- fier of every mobile phone in the area, collecting meta-data from subscribers while the device is in use. Peel and Durham police did not respond to any questions. Police in York region said it would require a manual search of its records management sys- tem to find out how many tower dump orders were granted. The OPP said it does not keep specific records on production orders, while Ottawa police re- quire a freedom of information request to be filed. In response to questions about IMSI-catchers, Ottawa police said "it did not use or cause to be used" the device in 2015 and 2016. A spokesman for York Re- gional Police indicated that it does not "own" an IMSI-catcher. The number of IMSI-catchers it owns or how often they were used cannot be disclosed because it could "jeopardize active in- vestigations and threaten public and officer safety," said a spokes- woman for the OPP. Data from non-targets is destroyed after the end of all court proceedings, in- cluding appeals. Mark Pugash, director of communications for the Toronto police, says it does not discuss the use of specific tools or techniques. "We comply with all report- ing requirements," he adds. Unlike other surveillance techniques such as wiretap re- quests, though, police are not compelled to report publicly how often tower dumps or IMSI- catchers are used. It has also been left to police to decide what type of warrant, if any, is required. "There are no rules," sug- gests Craig Bottomley, a defence lawyer who acted in a case last year where the court heard that an IMSI-catcher owned by the RCMP was utilized to assist the Toronto police in its investiga- tion. In cross-examination, an RCMP officer admitted that some of its own policies regard- ing its use were not followed. "We need to take more steps to safeguard privacy," says Bot- tomley. The Information and Pri- vacy Commissioner of Ontario would also like to see more in- formation disclosed about how often devices such as IMSI- catchers are utilized and what happens to data collected from non-targets. "Police should be open about the use of surveillance technolo- gies," says David Goodis, an as- sistant commissioner of the pro- vincial agency. "The meta-data that these things collect is personal infor- mation. There should be trans- parency about what happens to the data. For non-targets, how long does it stay there?" he asks. "That information could be in the warrant application." In another example where technology utilized by police could impact privacy rights, the provincial privacy commission provided guidance this summer about automated licence plate recognition systems. The OPP was involved in the consulta- tions and agreed to destroy data related to licence plates that do not turn up a "hit" in the system, notes Goodis. Eric Granger, a defence law- yer at Greenspon Brown & As- sociates in Ottawa, says police should not be requiring freedom of information requests simply to find out how many times a device or technique was used in any given year. "My concern as a lawyer and as a member of the general pub- lic is that it seems there is an ef- fort to be secretive. What is it the police are hiding and why are they hiding it?" asks Granger. To date, the only public infor- mation about the use of IMSI- catchers by police is from a recent ruling by the federal privacy com- missioner in response to a com- plaint by the non-profit group Open Media. The ruling disclosed that the RCMP used the device in 125 investigations between 2011 and 2016. Six times no warrant was sought, based on legal advice it had received. While the RCMP now always seeks warrants, it does so under a new Criminal Code section that requires a judicial officer to have "reason to suspect" a crime has been or will be committed, instead of the general warrant standard of "reason to believe." The lack of express rules for police ends up putting more of an onus on the private sector to protect the privacy rights of cus- tomers, says Molly Reynolds, a senior associate at Torys LLP in Toronto. "It is a challenge to comply with both private sector [priva- cy] legislation and court orders," says Reynolds, who is on the ex- ecutive of the privacy law section of the Ontario Bar Association. One option she suggests is for the federal government and the provinces to come up with a "model code" for new rules about disclosing the use of the technol- ogies by police and what is done with the data of non-targets. "It could have a standard set of principles and it would be left to the provinces to implement," she says. One of the only rulings in Ontario to set out guidelines for tower dump requests was issued by a Superior Court judge last year in a court proceeding ini- tiated by Rogers and Telus. The companies challenged produc- tion orders sought by Peel police in a robbery investigation that would initially have required turning over subscriber infor- mation for more than 40,000 people. LT NEWS NEWS NEWS David Goodis says 'police should be open about the use of surveillance technologies.' What is it the police are hiding and why are they hiding it? Eric Granger S.N.King Bookkeeping Services Law office specialist, PCLaw, LSUC audits, payroll, LSUC and tax reports. (905) 409-9109 sueking1234@gmail.com LAW TIMES Marketplace © 2017 Thomson Reuters Canada Limited 00247PC-A89128-CM AVAILABLE RISK-FREE FOR 30 DAYS Order online: www.carswell.com Call Toll-Free: 1-800-387-5164 | In Toronto: 416-609-3800 Order # 988082-65203 $150 Softcover approx. 275 pages August 2017 978-0-7798-8082-9 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. Gain a concise overview of privacy and freedom of information laws throughout Canada with Fundamentals of Privacy and Freedom of Information in Canada, 2nd Edition. This introductory text provides a clear and succinct statement of the law related to privacy and freedom of information under both federal and provincial statutes. Written by Canadian experts in the field, this book outlines the purposes behind access and privacy rights, key definitions in the statutes, and includes a summary of the federal and provincial administrative regimes. Learn more about the major issues related to: • Freedom of information • Protection of privacy in the public sector • Protection of privacy in the private sector • Review rights and procedure New in this edition This updated title is based on the Privacy and Freedom of Information title in the Canadian Encyclopedic Digest, 4th Edition. This edition includes the following noteworthy new decisions: • LeCaine v. Canada (Registrar of Indian and Northern Affairs) (2015 Sask. C.A.; leave to appeal refused (2016 S.C.C.)) • Alberta (Information and Privacy Commissioner) v. University of Calgary (2016 S.C.C.) • R. v. Spencer (2014 S.C.C.) • UFCW, Local 1518 v. Sunrise Poultry Processors Ltd. (2015 B.C. C.A.) New Edition Fundamentals of Privacy and Freedom of Information in Canada, 2nd Edition Professor Michel W. Drapeau, (Colonel Ret'd), OMM, CD, LL.L., LL.B., M e Marc-Aurèle Racicot, B.Sc., LL.B., LL.M., and Ashlee Barber

• Cover