Stingray cellphone-snooping technology needs regulation, columnist says

The Liberal Party has promised parliamentary oversight for Canada's national intelligence agencies, but the issue of policing and surveillance overreach isn't just a national problem. It's a municipal one too, as a recent example concerning gang members in Toronto has proved. About 40 members of the Asian Assassinz gang and a rival crew are on trial, and their lawyers have received an internal RCMP memo proving that police in Canada have used Stingray devices to track and locate suspects' cellphones.

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One major problem is that these Stingrays, or International Mobile Subscriber Identity (IMSI)-catchers, can disrupt and block innocent third-party phone calls made within a certain vicinity. The device mimics cellphone towers and is supposed to attract signals from the suspected parties' mobile devices, thus allowing the police to tag and perhaps bug the phones later on. But they can also attract signals from phones in the area being used by innocent bystanders. The devices are also supposed to deactivate when coming into contact with 911 calls, but this doesn't always happen. Defence lawyers are now hoping to put the use of IMSI devices on trial, alleging that it breaks the law by disrupting the public airwaves, and thus infringes on the rights of their clients.

Public should have been informed

The 1985 Radio-Communications Act prohibits incursions on the public airwaves, particularly intrusions that interfere with people's calls. Yet even the Toronto police have acknowledged that IMSI devices can violate this law, which is why the plan, according to Toronto policeDet. Shingo Tanabe in a sworn affidavit related to the Asian Assassinz case, was to limit the use of such devices to three-minute intervals and to steer clear of those trying to call 911.

Citing logs of devices used in the case, defence lawyers are arguing that the police didn't even adhere to their own rules. According to these lawyers, IMSI devices were used for more than three minutes at a time, thus increasing the chances of serious interference with the airwaves. This kind of use can carry a prison sentence, and it's not clear yet whether police are exempt from the rules.

More frustrating for the general public is the denial on the part of the Toronto police when asked last year by the media if they were operating with IMSI devices. They arrested the gang members back in 2014, but said last December that, "We do not use the Stingray technology and do not have one." This conveniently glossed over the fact that Toronto police brought in an RCMP officer who assisted in the case by using a Stingray device.

It's clear by now that the police focus on catching their suspects prompted them to use methods that jeopardized the public's safety, in addition to essentially misleading the public into thinking they didn't even have the tools to pursue such methods.

Impossible to regulate what you don't know

The document received by the defence that illustrates the use of IMSI technology was disclosed to them by the RCMP, and is a 2011 internal memo that actually warns officers how such devices can break the law. To steer clear of such illegal activity, the memo suggests that officers limit the use of IMSI devices in a way that doesn't jeopardize public safety. It's at best unclear whether Toronto police took real precautions to regulate themselves, and the defence alleges there's plenty of evidence to suggest the contrary.

In fact, federal officers have been using IMSI technology since 2005. Yetonly because of media investigations and court documentation related to the Asian Assassinz case, along with another organized crime case in Quebec, has information about the police use of such technology made its way to the public. Prior to the past few months, only police and judges who issued warrants knew about the police's use of these devices.

How will policy-makers and legislators decide what place this kind of technology has in Canada if they are kept in the dark? The Toronto police remain reticent on the matter, and, depending on how the Asian Assassinz case unfolds in court, the legality of IMSI devices is likely to be called into question, which will be a real blow to those who want to put the gangsters behind bars. However, that the police used this technology extensively in the first place, without proper oversight, is further evidence that Canada's post-Sept. 11 policing and surveillance needs plenty of regulation.

Elected officials, particularly those in the Liberal Party who now make up a parliamentary majority, supported hard-core security legislation Bill C-51, in particular partly by way of promising that they will apply the right kinds of oversight to intelligence-gathering. But the Toronto case has essentially proved that even they haven't figured out exactly what they're supposed to be regulating let alone how.

Steven Zhou is a Toronto writer who has experience in human rights advocacy. He has worked for Human Rights Watch, OXFAM Canada and other non-governmental organizations.