‘Good Will’ Hunting? The Ongoing Saga of Stingray Surveillance and Police Accountability in Canada

Last month, Michael Vonn, policy director of the British Columbia Civil Liberties Association (BCCLA), expressed a deep concern for the Vancouver Police Department’s (VPD) use of the ‘Stingray’ surveillance technology in a featured blogpost titled ‘Stingray surveillance: more of the story.’ In what is believed to be one of the first official admissions by a police municipal force in Canada, Vonn outlined how privacy for Canadians becomes jeopardized when police accountability with such surveillance devices are left unchecked by government and justice officials. Initially developed for the intelligence and military communities, Stingray is the commercial name for surveillance devices known as IMSI (International Mobile Subscriber Identity) catchers. These cell-site simulators intercept cell phones’ connections to communications towers, gathering metadata and, in some cases, content from the phones that connect to them (Kassam, 2016). By way of such impersonation, police could have access to cell phone users’ SIM card IDs, the phone’s location and its service provider. Furthermore, not only do troubling privacy concerns arise with Stingray’s use, but its implementation across Canada is quite opaque, as many police agencies refuse to confirm nor deny that they use them, compared to the wide acknowledgement of use witnessed by our American counterparts (Snowdon, 2016).

The Stingray revelation came to light after a lengthy year-long struggle between the VPD and a coalition of civil rights organizations, most notably the BCCLA and Vancouver’s Pivot Legal Society. Vonn indicates in her featured blogpost that “[n]ot only has it taken years to get the most basic and partial of information on this subject, but we are still largely dependent on the good will of the police to use these devices responsibly because protection from illegitimate or abusive use is next to nil.” Indeed, such a back-and-forth between law enforcement and these organizations speaks to the growing concerning of mass surveillance operations and strategies implemented within Canada, and the growing need for citizens to hunt for evidence that validates their Charter rights to freedom, liberty, security, and unreasonable search and seizure from police practices. Canadians certainly would like to have their police agencies respect their reasonable expectation of privacy in the process of the police administering justice, law and order.

Furthermore, it would not be a far stretch to suggest that Canadians hope that their government and police agencies balance the scales of liberty and security to the best that police practices and powers can offer. However, in this ongoing attempt to securitize the state while maintaining the citizens’ rights to privacy, and taking into account this particular Stingray situation, two relevant questions come to mind: are we moving into an era where citizens must demonstrate (in life rather than in court) that a rights violation did occur by way of intrusive surveillance strategies helmed by police agencies, instead of taking the rights’ protections enshrined within the Canadian Charter of Rights and Freedoms at face value? Furthermore, if it is true that Canadians are forced to rely on the ‘good will’ of the police to use such surveillance legitimately (at least for the time being; currently there are no indicators available to the public of how this practice is regulated to suggest otherwise), then do the safeguards we have in place (i.e. the Charter) uphold police accountability to the fullest extent of the law?

In order to answer these questions properly, it would be best to consider the latter question before the former. For those unfamiliar with the Charter, Section one gives the courts the power to exempt the government from Charter compliance when the government can establish it has violated the rights of an accused using “reasonable limits” in the context of a “free and democratic society” (Charter, 1982, S.1). Section 8 of the Charter enumerates the accused’s right to be free from unreasonable search and seizure. The content of the reasonableness of the search is subject to judicial interpretation. The more reasonable the search, the more likely the search will be legal. For instance, if a court defines conceptions of reasonableness broadly enough, the corollary is that surveillance and visibility will increase.

Certainly, the effect and role of sections one and eight have been well-mined in scholarly terrain (Jochelson, 2009; Jochelson et al., 2014). Yet considering the little knowledge acquired from police agencies on their use of Stingray surveillance, it is not clear what ‘reasonable limits’ are set upon the gathering of citizens’ metadata, the situations in which the use of these devices are justified, or what is done with the compiled information intercepted from citizens’ cell phones and their respective communication towers. While there are regulations in the United States instructing the destruction of information gathered by Stingray technology, such regulations do not exist in Canada as of yet (Snowdon, 2016). Moreover, the lack of clarity regarding whether warrants are always being sought by police, the nature of the warrants being applied for, what Canadian judges are being told about the capacities of Stingray technology, and if minimization techniques are being used to limit the data collection of people who are not the intended targets of surveillance all appear as causes of great concern to civil rights (Vonn, 2016).

Notwithstanding the issues above, it appears that in an era of security concerns, surveillance-based policing is becoming more prevalent and acceptable as a result (Jochelson et al., 2014). Such changes indicate that in on-the-ground police powers act in concert with broader security approaches undertaken by the state. To a certain extent, one could argue that the Charter and its safeguards have morphed into a legal and constitutional doctrine of surveillance (Jochelson et al., 2014). Rather than consider the Charter in a “tug of war” with security, risk-based calculi and austere ‘best practices’ procedures, some scholars have begun to consider the Constitution as one that is working in concert with security and surveillance in general (Jochelson et al., 2014, p. 110). Indeed, some argue that after 9/11 the state has been empowered in a type of permanent emergency, which has given rise to legislative and political anti-terror expansion (Diab, 2008; 2015) and forming the basis for an ongoing (and albeit ill-perceived) need for mass super target surveillance. Especially in an era where the threat of terrorism is perpetuated in popular and news media, it is unsurprising that some of these techniques of enhanced visibility would be lauded by some in Canada (Jochelson et al., 2014) while worrying others who believe that their civil rights are being violated for the sake of security. In an attempt to make the invisible visible, the lack of transparency on the part of police agencies to neither confirm nor deny enhanced visibility measures of surveillance means an inherently widened net of police investigations and a shrinkage of police legitimacy and accountability in the court of public appeal.

Arguably, the fog surrounding police implementation of Stingray could be seen as an affront to the conception of positivistic liberty – put differently, that which is not expressly excluded or publicized is effectively permitted; it also creates retroactive police powers that an accused in a given legal case could not have known were lawful (Jochelson, 2009). Indeed, the recent passing of Bill C-51 in 2015 is a wide scale legislative example of this, as it is an attempt to survey citizens, share information intra and inter –governmentally through intelligence agencies, and to criminalize terror related offences on the basis of, in some cases, mere suspicion, reasonable fear or reasonable grounds to suspect anti-security or terrorist related activity.

Are we transitioning into an era where citizens are required to accept the ‘good will’ of police agencies blindly and unequivocally, where rampant visibility quashes citizens’ rights to privacy, and where the ‘reasonable suspicion’ of criminality triumphs over empirical evidence of actual harm caused? Until such a time when proper legal regulations are in place to curtail potential abuse of Stingray’s surveillance, citizens alike are now forced to join the evidence hunt—a hunt in which we must scrounge up whatever pieces of truth salvageable to ascertain whether the ‘good will’ of the police was used and if the controversial cell phone dragnet equipment is in use. In effect, the continued acceptance of Stingray surveillance devices as a fully legitimate police practice undermines and erodes civil liberties, ultimately obviating the need for open discussions regarding the protection of civil rights, the extent of police powers and police practice reformations.

References

Diab, R. (2008). Guantanamo North: Terrorism and the Administration of Justice in Canada. Winnipeg and Halifax: Fernwood Publishing.

Diab, R. (2015). The Harbinger Theory: How the Post-9/11 Emergency Became Permanent and the Case for Reform. Oxford: Oxford University Press.

Jochelson, R. (2009). Trashcans and Constitutional Custodians: The Liminal Spaces of Privacy in the Wake of Patrick. Saskatchewan Law Review 72(2): 199 – 222.

Jochelson, R., Kramar, K. & Doerksen, M. (2014). The Disappearance of Criminal Law: Police Powers and the Supreme Court. Winnipeg and Halifax: Fernwood Publishing.

Kassam, A. (2016). “Vancouver police confirm use of ‘Stingray’ surveillance technology.” The Guardian: August 10.

Snowdon, W. (2016) “Edmonton police backtrack on Stingray surveillance statement.” CBC News: August 15.

Vonn, M. (2016). “Stingray surveillance: more of the story.” British Columbia Civil Liberties Association: August 8.

Legislation

Bill C-51. Anti-terrorism Act, 2015. 2nd Session, 41st Parliament 62-63 Elizabeth II, 2013-2014-2015. http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=6932136&File=32&Col=1. Accessed on August 8, 2016.

Canadian Charter of Rights and Freedoms, s 2, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 1

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The views and opinions expressed in the blogs are the views of their authors, and do not represent the views of the Faculty of Law, or the University of Manitoba. Academic Members of the University of Manitoba are entitled to academic freedom in the context of a respectful working and learning environment.