And they need to answer for it.
It's been an enlightening week in Canada. On Wednesday, the Calgary and Winnipeg police, as well as the Ontario Provincial Police, publicly confirmed that they use powerful cell phone surveillance devices known as IMSI catchers in a report by the CBC. The country's federal force, the RCMP, also recently admitted to using the devices, after years of refusing disclosure despite mounting evidence.
It's good news that Canadian police forces are finally coming forward, but it also makes one wonder why they kept the public in the dark for so long. Make no mistake: For years, through careful omissions, PR gerrymandering, and out-and-out obstinance, police in Canada misled the public about their use of IMSI catchers, which impersonate cell phone towers and force any phone in the area to reveal information about the device and user.
"The police dissembling on this over the years—dodging the questions, and their denials—significantly undermined the credibility of the police"
Now that police are finally admitting they use IMSI catchers, which were already the worst-kept secret in law enforcement, they still aren't absolved of any of this. It's entirely possible that other local police departments use the devices, as many ignored or denied the CBC's request for comment.
"The police dissembling on this over the years—dodging the questions, and their denials—significantly undermined the credibility of the police, which is a key component of their accountability," said David Fraser, a Canadian digital privacy lawyer.
"What it means is that we as citizens are denied the opportunity to participate in a discussion about what's appropriate regarding the use of these devices," he continued.
Let's take stock of the sheer amount of effort police put into hiding these devices.
There was the Project Clemenza court case, which was key in shedding light on the RCMP's use of IMSI catchers. In that case, the RCMP fought hard to keep their use of these devices secret from the court and the public. They largely succeeded, thanks to the amount of redactions in the released court records.
There's also the RCMP practice of denying access to information requests under broad legal exemptions for police. Of the completed requests that the RCMP posts publicly, every single request pertaining to IMSI catchers was denied, or the respondent was told no records exist. We now know they were using the devices dating back to 2005.
As for local police, the information drought was even worse. I, like many reporters in Canada, have asked local police forces about their use of IMSI catchers and gotten nowhere. I even tried to get a list of completed requests, not unlike the one the RCMP posts publicly, from these same departments, and it was a Kafkaesque nightmare of inconsistent policies and demands. The answers that I did get back showed that past requests regarding IMSI catchers were all denied. Other departments denied my request to see past requests.
The Calgary and Winnipeg police, which told me last year that they've denied every information request regarding IMSI catchers, or concluded that no records exist, have now both admitted to using IMSI catchers.
"The state is using secret technologies to collect secret information that they want to use kind of secretly, without explanation, up to the point of fighting to refuse disclosures in court," said Brenda McPhail, director of the Canadian Civil Liberties Association's surveillance project. "That's not an acceptable way to use technologies or information in a free and democratic society."
So, what do we do about it?
A first step, according to McPhail, is making it a law that police (and other government agencies) must disclose their use of privacy-impacting technologies to the Office of the Privacy Commissioner of Canada. Right now, it's government policy for this to happen, but the Commissioner himself has expressed frustration that police don't always follow the rules, and there are effectively no consequences.
"You'll recall that the RCMP said that they don't mind reporting their activities, but there's no law saying they have to do it; well, that's low-hanging fruit," McPhail said. "The first thing we need to do, if we've decided that it's appropriate, is to require reporting on all forms of electronic surveillance, and that legislation should be crafted to capture emerging technologies."
The fact that the police hid IMSI catchers from the public for years leaves us to wonder what else they're hiding, and how it might impact us.
"If we can't believe the police about what they say about their practices, we can't believe what they say generally," Fraser said. "And frankly, we need to be able to trust them. But if citizens are being lied to by the police, what does that do to our democracy?"
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