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Agencies did not get federal authorization to use surveillance devices

Innovation, Science and Economic Development Canada says it never gave permission to any federal agency to use surveillance-dragnet devices that target cellphones.

The federal department that regulates radio communications in Canada says that it has never granted authorization to any security agency to use surveillance-dragnet devices that target cellphones.

The revelation from Innovation, Science and Economic Development Canada comes in the wake of two recent Globe and Mail stories that detail the use of such devices by both the RCMP and Correctional Service Canada that came to light in cases before the courts.

ISED officials say that federal security agencies risk running afoul of regulatory rules if they do not first clear the use of the technology.

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The Globe reported last week that in 2011, RCMP detectives used what they called "mobile device identifier" technology to help crack an alleged Montreal murder conspiracy.

And in 2015, The Globe said, Correctional Service Canada officials used what they termed a "cell grabber" to zero in on contraband cellphones in a prison.

Such devices, known generically as "IMSI catchers," are understood to grab at suspects' mobile-phone data by essentially impersonating cellphone towers and by disrupting and redirecting the communication of all phones within a particular radius.

So while judges can sign warrants authorizing such surveillance, Canada's regulatory radio-communications rules still serve as a distinct legal barrier. That is because ISED, previously known as Industry Canada, is supposed to protect from interference the public airwaves upon which all cellular communications rely.

"International Mobile Subscriber Identity (IMSI) catchers are a class of radio apparatus, as they use standard radio signals to communicate with surrounding devices. Their possession or use would need to be authorized," wrote Stefanie Power, a spokeswoman for ISED, in an e-mail to The Globe early this month. But, she added, "no such authorizations have been provided to date."

In response to Access to Information requests made earlier this year, officials at ISED said they were unable to locate any internal records of "legal opinions, briefing notes, reports, [or] privacy impact assessments" relating to such devices.

Also, previously released records from 2014 suggest that ISED policy officials had conflicting views on the rules governing such devices, and that many of them had never encountered questions about one.

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For example, one bureaucrat expressed fears that security agents could be using the devices, but not be looping in the department. The RCMP "could just be using them under the impression that they don't need to consult," he wrote in an e-mail.

Another internal e-mail said that "there are reports of their use in the U.S., but none I can find in Canada." In another, an official wrote that "as it is a device intended to be used by specialized law enforcement public safety agencies ... the onus would be on these users to approach Industry Canada for a special authorization."

Parallels from the United States were contemplated in some of that correspondence. Departmental officials discussed how the U.S. Federal Bureau of Investigation was given a broad regulatory exemption by the Federal Communications Commission, so that the FBI and allied agencies could essentially independently regulate their use of such devices.

This was achieved by U.S. regulations classifying "IMSI catchers" as signal "jammers."

In February, 2015, a similar regulatory exemption for "jammers" was put on the books in Canada to facilitate use of such devices by the RCMP. But when asked about the exemption, an ISED spokesperson maintained that IMSI catchers would not necessarily be considered jammers. The Mounties would not comment on the issue.

While federal security agents won't speak to investigative techniques, they say that they adhere to what judges rule in warrant applications. Under Canada's Criminal Code, electronic surveillance can only be gathered with "a warrant, court authorization or other lawful authority that targets communications or transmission data," wrote Ian McLeod, a federal Department of Justice spokesman, in an e-mail.

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Separately, the Radiocommunication Act, gives ISED authority over every person, organization and device that sends or receives information via wireless airwaves. The intent is to prevent potentially harmful interference, and the expectation is that all devices and operators be authorized for use. Any individual found to be breaking these rules could be fined up to $25,000, and any organization faces fines of up to $10-million.

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About the Author
National security reporter

Focusing on Canadian matters during the past decade, Colin Freeze has reported extensively on the interplay between government, police, spy services, and the judiciary. Colin has twice been to Afghanistan to be embedded with the Canadian military. More

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