According to a Toronto Star article by Cribb, Seglins, and Chelsea Gomez, “The RCMP has provided unprecedented access to the Toronto Star and the CBC in an effort to make its case that antiquated laws and diminished police powers in the digital age are allowing suspected terrorists, drug gangs and child abusers to operate beyond the law.”
The RCMP shared information on ten cases of their choice in which they claim the bad guys are winning; captivating the media’s attention with child abuse, drug dealers, and terrorists. In these cases the force felt obstructed by encrypted phones, laptops, and communications.
Make no mistake, police have a tough job to do. But it would be foolish to ignore the fact that these cases were hand-picked by police for highlighting by the media. The RCMP carefully selected abhorrent crimes such as child sex abuse and terrorism to play on the emotions of Canadians.
In one case, “Police have testimony from a child alleging sexual assault by their father who they say recorded the crime on his phone. The phone is locked by a pass code and investigators have not been able to access the video.” Of course everyone would like to see this phone unlocked and examined for potential evidence. But police investigated, prosecuted, and obtained convictions for sexual assault long before mobile phones existed. Have police become so reliant on digital evidence that they cannot investigate without it?
In another case, the RCMP resorted to covert entry and planting bugs because a suspect was using encrypted VoIP calls. Their complaint, “at one point the interception method failed, and for two weeks ‘valuable’ evidence was missed,” begs the question: Was this case chosen to demonstrate that the “need” for VoIP interception is more important than the competent use of existing electronic surveillance techniques?
The RCMP also reportedly ran into issues with data volumes: “The internet/phone provider lacked interception capabilities, so police spent considerable resources to install their own equipment, but were eventually swamped by 21 million data points (web searches, images, videos, texts).” Does this suggest that the RCMP is unaware of big data and lack modern analytical capabilities? Or have they simply become reliant on telecommunication providers collecting and filtering data for them?
The lawful access debate is critically important; Canadians need to carefully consider what the RCMP is not telling them. The proposed new powers will not be limited to investigating despicable crimes such as child abuse and terrorism. They will also be used for fishing expeditions and to obtain personal information from witnesses.
Terrorists will not be impacted by lawful access legislation. Canadians are not naive enough to believe that any Canadian law can prevent terrorists from obtaining and using freely available cryptography. No terrorist is simply going to hand over their password because police ask, or present a court order.
Police are seeking an impossible solution; there is no way for cryptographic protections to magically vanish when ordered by a court. Any technical mechanisms introduced to facilitate law enforcement access to encrypted information will benefit criminals and foreign spies as well. As the United States learned in the 1990s, introducing backdoors intended for law enforcement will cripple product exports. Criminals will simply obtain their encryption software elsewhere.
The RCMP is also not talking about the slow, quiet transfer of surveillance and investigative costs to the private sector. In years gone by, police would have to assign a team of officers to tail a suspect and monitor phone taps. Doing so was expensive, and police therefore used these techniques only in the most serious cases. Today, officers can track mobile phones and intercept Internet communications instead. A single officer and monitor the location of dozens of individuals. With a court order, police can secretly access communications that have occurred in the past, and with metadata apparently not deserving legal protection, can quickly expand their investigation to their subject’s friends of friends.
When Canadians hear the police say that telecommunication providers should build and maintain interception capabilities, they should ask who will pay for it. And what do police want next — should hotels, restaurants, and bars be required to install microphones so police can obtain a warrant to tune in to conversations?
Modern communications present significant challenges to law enforcement, and updated legislation is required. But Canadians deserve an honest debate that includes legitimate police needs, fundamental privacy rights, and appropriate judicial oversight.
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