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34 O C T O B E R 2 0 1 7 w w w . C A N A D I A N L a w y e r m a g . c o m you are receiving and sending messages to and your location. You can find out a lot with metadata," he adds. Christopher Parsons, a research associate at the Citizen Lab in the Munk School of Global Affairs at the University of Toronto, is blunt in his description. "It is a mass surveillance device," says Par- sons, who co-authored a detailed paper last year about the capabili- ties of IMSI-catchers and what is known about their use in Canada. "It has not been robustly evaluated by the courts," says Parsons, who believes that governments are also not fully appreciating the scope of these devices. Even their exact cost is shrouded in secrecy, he points out, because the manufacturers sign private agreements with police services for training and ongoing software upgrades. Law enforcement in the U.S. and Canada both stress that the devices are used only for the most serious of criminal investiga- tions. However, research conducted by University of Maryland journalism students recently uncovered an example where police in Annapolis had used one to try to determine the location of a man suspected of stealing 15 chicken wings and three sandwiches from a fast food delivery driver. In Clemenza, which did involve serious criminal allegations, the RCMP obtained a general warrant. Amendments to the Criminal Code in 2014 related to warrants for a "transmission data recorder" may make it easier for police to obtain court permission to use an IMSI-catcher, but that remains unclear, says Parsons. After the stay of charges in Clemenza, the RCMP issued a news release to say it used this technology in 19 investigations last year. It outlined policy guidelines in very broad terms and promised that "information that is not relevant" to an investigation will be destroyed after all appeal periods have expired. David Fraser, a privacy lawyer and partner at McInnes Cooper in Halifax, says the level of secrecy is not unusual when it involves new technologies used by police. "A lot of this happens in the shad- ows," he suggests. As well, in the case of the RCMP, it is relying on advice from federal Department of Justice lawyers, most of which the government then maintains is privileged and inaccessible to the public, notes Fraser. Police across Canada have complained publicly about the Supreme Court's 2014 decision in Spencer, which requires a warrant or production order to obtain the Internet Protocol address of a suspect from a service provider. According to Fraser, though, there is little evidence that the effectiveness of police is hampered by this requirement. "Publicly, they say the sky is falling, but privately, they say they can work around it," he observes. Overall, in terms of privacy protection, Fraser says he is more confident with how it is handled by large corporations than by law enforcement. "Companies are, in fact, the ultimate guardians of people's personal information. The competitor is just a click away," says Fraser. He notes that a major challenge to the scope of tower dump requests in Ontario was fought by Rogers Communications and Telus Communications. Detailed guidelines for future tower dump requests by police were set out by Superior Court Justice John Sproat in his 2016 ruling in that case. "We probably should be grateful to Rogers and Telus for taking a public stand," says Fraser. In fact, the most detailed public information about how many subscribers have had data accessed as a result of tower dumps is in the latest annual transparency report issued by Rogers. It stated that about 37,000 of its subscribers had information turned over last year through tower dump court orders. This past summer, the federal government introduced legis- lation to create a new watchdog agency to oversee the Canadian Security Intelligence Service, the Communications Security Establishment and the security functions of the RCMP. At this time, there is no plan to consider reporting requirements simi- lar to ones in place for wiretaps for new surveillance technolo- gies, says Scott Bardsley, spokesman for Public Safety Minister Ralph Goodale. Bardsley stresses that the IMSI-catchers used by the RCMP and CSIS are not capable of intercepting content (such as text messages, which some of these devices can do). "We are committed to great transparency," he states. Part of that goal is establishing an advisory group on national security transparency, which will include civil liberties groups, Bardsley explains. According to Friedman, it may ultimately be appropriate for security agencies and law enforcement to utilize many of these new technologies. But he suggests there needs to be some sort of public vetting at the start. "If the public knows and gets to weigh in, then it is defensible," he states. REACH ONE OF THE LARGEST LEGAL AND BUSINESS MARKETS IN CANADA! AVAILABLE ONLINE AND IN PRINT With more than 300,500 page views and 100,000 unique visitors monthly canadianlawlist.com captures your market. FOR MORE INFORMATION CONTACT Colleen Austin: T: 416.649.9327 E: colleen.austin@thomsonreuters.com www.canadianlawlist.com ntitled-7 1 2017-09-13 4:01 PM

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