Canadian Court Says Law Enforcement Doesn't Have To Hand Over Info On Stingray Devices

from the go-ahead-and-stack-the-deck dept

A Canadian court has ruled information about law enforcement’s not-all-that-secret cell tower spoofers can stay secret. An ongoing attempted murder trial has implicated the use of Stingray devices. Prosecutors have refused to turn over information about the devices to the defendants — something that at first provoked some consternation from the presiding judge. (via Slashdot)

Court of Queen’s Bench Justice Glen Poelman initially agreed with defence lawyers Kelsey Sitar and Clayton Rice and granted them the right to question the CPS officer involved in using the MDI regarding its make, model, features and the circumstances that may or may not affect its use.

Unfortunately, prosecutors were able to sway the judge’s opinion during an in camera briefing. The government invoked part of the Canada Evidence Act, granting it an apparent disclosure exemption on the theory handing over make and model information would be “contrary to the public interest.”

Poelman has ruled the police investigative techniques are privileged, and he prohibited the release of the make, model and software of the MDI as well as “any further information which would have the effect of disclosing the technique by which MDI obtains cellphone identifier information.”

This may end the line of discovery as it relates to law enforcement’s IMSI catchers, but it doesn’t necessarily mean the prosecution will be able to move forward. The defense plans to challenge the lawfulness of the prosecution itself. Withholding evidence possibly crucial to the defense doesn’t make for a fair trial and it appears the defense will argue charges should be dropped if information isn’t going to be produced. It’s not like there isn’t any precedent to work with. Earlier this year, the government chose to let 35 accused Mafia members go free rather than discuss Stingray use in court.

Clayton Rice, who is representing one of the accused in this case, has graciously sent over a copy of the court’s ruling [PDF] on the issue. (This ruling was under a publication ban until mid-morning Tuesday.) Rice points out this is only an interim ruling and doesn’t necessarily represent the final word on the subject. The court has granted the government the (possibly temporary) right to withhold certain information about its cell tower spoofers, which includes its make and model. The order is heavily redacted, which is one of the reasons it’s only now being released despite having been decided back in August.

What can be sussed out from the redacted discussion is that the Calgary Police do not possess an actual Stingray — the sort made by Harris Corp. That much is made clear in the ruling. The method used for tracking phones is also withheld, even though the technique used by the CPS has apparently been discussed publicly before. But you won’t be able to find that information in the court’s decision.

[I]t could be argued that all elements of CPS’s MDI investigative techinique are publicly known. However, the Crown argues that it is not known that the CPS’s MDI uses the [redacted] method, and the fact that information about the [redacted] procedure may be publicly accessilbe is not the same (especially in the internet age) as a police service verifying is accuracy or confirming publicly that this is the procedure they use. It is not necessarily well-known. The only public information about which Sgt. Campbell is aware that discussed the [redacted] technique is the [very lengthy redaction to end of paragraph.]

For the time being, however, the Calgary Police’s cellphone interception hardware will remain a mystery. The question now is whether that desire for secrecy will cost the Crown its prosecution.

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Comments on “Canadian Court Says Law Enforcement Doesn't Have To Hand Over Info On Stingray Devices”

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Roger Strong (profile) says:

Re: What are they hiding?

What are they keeping from us?

Information that can be used against them in a court of law.

In 2015 an Ontario federal prison got it’s own more powerful IMSI catcher, hoping to find inmates’ contraband phones. This upset the guards, whose communications were also captured.

The prison warden apologized, but now there’s a criminal investigation. They broke federal laws that prohibit the warrantless wiretapping of private communications.

Meanwhile, the Calgary Police got their own device a year earlier and have been using it. "Acquisition can be done at the municipal level. We didn’t need federal approval to acquire one."

Funny story; turns out they were wrong too.

Once acquired, such devices would be subject to the federal Radiocommunications Act, which is enforced by Industry Science and Economic Development Canada (ISED), a federal department.

The act states that anyone who uses a device that interferes with public airwaves will face fines or jail time if they do not get the blessing of regulatory officials in advance.

However, a spokeswoman for ISED told The Globe and Mail in 2016 that "no such authorizations have been provided to date."

So the secrecy may be less about turning over information to defendants, than turning it over as defendants.

Anonymous Coward says:

Re: Re: What are they hiding?

This seems to be the recent trend: law enforcement isn’t aiming for rehabilitation or even conviction, it’s aiming for arrest counts. Consider all the alleged pedophiles they had to let go because they’d rather have that, than risk having to provide an explanation to a judge. Same thing for the stingrays of debatable accuracy.

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