RCMP's spyware tools are 'extremely intrusive,' privacy experts say
Expressing concerns over the RCMP's yearslong use of spyware in major investigations, privacy and civil liberties experts say the previously undisclosed tools are "extremely intrusive" and they are calling for stronger oversight and regulation of spyware Canada-wide.
The experts also criticized the RCMP's belated disclosure of its use of these tools, with the Canadian Civil Liberties Association (CCLA) saying it is part of "a pattern pointing to a crisis of accountability."
Canada's former privacy commissioner Daniel Therrien said that while he believes the RCMP when they say its use of spyware is lawful and warranted, there is "no doubt" the covert collection by police of personal and other information from Canadians' devices "is an extremely intrusive practice."
"What's at play is the balancing of privacy and other public interests," Therrien said Tuesday during his testimony before the House of Commons Access to Information, Privacy and Ethics Committee as part of its study into the RCMP's use of "on-device investigation tools," or ODITs.
"There is no question that this particular tool is extremely intrusive, more intrusive than traditional wiretap tools. It does not just record communications on the phone between person A and B. It sits on the phone, on the digital device of the individual,” he said.
Given this, Therrien said there "needs to be an extremely compelling public interest to justify the state being able to have that kind of information and use these tools."
The committee struck up the special summer study to further explore the RCMP's use of these tools, after documents tabled in the House of Commons in June shed new light on the police force's covert installation of spyware capable of remotely accessing cell phone and computer microphones, cameras, as well as other information on suspects' devices.
"The revelations about ODITs are just the latest in a series of similar media-led reveals regarding invasive techniques… This isn't a one off problem," the CCLA's director of privacy technology and surveillance program Brenda McPhail told MPs.
"Operational secrecy is a legitimate need in specific investigations. Secrecy around policies that apply to categories of dangerous surveillance technologies is not legitimate in a democracy. We must not allow law enforcement bodies to conflate one with the other to avoid accountability," McPhail said.
SPYWARE USE 'SPREADING FAST': CITIZENLAB
Throughout the study, attempts have been made by MPs to clarify the RCMP's use of these tools are limited and not "mass surveillance," though in testimony on Tuesday afternoon, experts sounded alarm bells about the potential widespread accessibility of spyware software.
"The mercenary spyware industry is very poorly regulated and proliferating quickly. The industry lacks public accountability and transparency. It thrives in the shadows of the clandestine world and is spreading fast without proper controls," director of the University of Toronto's Citizen Lab Ronald Deibert told MPs.
Deibert said the spyware industry is a threat to civil society, human rights and democracy as a whole.
Therefore, he said Canada should take the threat seriously by imposing more oversight and export controls, and be more transparent about the use of spyware to ensure it is not being abused -- as its capabilities far exceed traditional wiretaps.
"There's a pattern of law enforcement in this country using investigative techniques and surveillance technologies, and disclosing them after the fact. That's not the way you build public trust in law enforcement... We are better than that," he said.
While the courts do have a judicial oversight role, Therrien is suggesting there could also be an additional layer of privacy-focused oversight from a body, such as the Office of the Privacy Commissioner of Canada.
"I don't think the RCMP is a rogue institution. And currently, they say, and I accept that they use ODITs only with judicial authorization… That said it might well be a good idea to have auditing processes," Therrien said.
FORMER COMMISSIONER 'SURPRISED'
To date, the RCMP has not consulted with Canada's privacy commissioner about the spyware use conducted by the Technical Investigation Services' Covert Access and Intercept Team. Privacy Commissioner Phillippe Dufresne says there are plans for a briefing scheduled later this month.
Therrien, who was Canada's privacy commissioner between 2014 and 2022, told MPs on Tuesday -- like his successor -- he also learned about the spyware use at the same time as the rest of the country.
The former privacy watchdog said he was "surprised by the tool itself, and how intrusive it is, and that it was used for so long."
"It is the inclusiveness of the tool that surprised me, not the fact that the state would use technology in the context of investigations," Therrien said.
Therrien added he was also surprised that given the years of public debate over lawful access and the issue of encryption, the RCMP did not inform him – in his capacity as the privacy commissioner -- of their ability to use spyware tools.
Privacy and Access Council of Canada President Sharon Polsky told MPs on Tuesday she agrees it is problematic the RCMP has not collaborated with the privacy commissioner, despite there being no legal requirement to do so.
"It's only after they get caught with their hands in the cookie jar. I think they're doing themselves a disservice, they and every law enforcement agency across the country, a disservice when they are not forthcoming," she said in response to a question from Conservative MP and committee member Damien Kurek on Tuesday.
"It also puts them on the defensive rather than coming forward and saying, ‘We need to use this type of tool' … Help educate the public as to why you need this particular type of tool. Don't wait to be put on the hot seat," Polksy said.
CALLS FOR RCMP TO DISCLOSE PROVIDER
Tuesday's hearings follow hours of testimony on Monday from Public Safety Minister Marco Mendicino, senior RCMP officers, and Canada's privacy commissioner.
During those hearings, it was revealed the RCMP has been using spyware for years longer and in more major criminal investigations than what was previously reported to Parliament.
The minister and top officers sought to emphasize to MPs how these tools to bypass encryption are used extremely rarely, in a targeted fashion that upholds the Charter, in a limited number of types of investigations such as terrorism and organized crime, and only ever with judicial authorization issued after demonstrating a high threshold of probable cause.
According to RCMP Commissioner Brenda Lucki, the RCMP has used ODITs in 32 investigations to target 49 devices since 2017. However, RCMP Assistant Commissioner Mark Flynn indicated to committee members on Monday the RCMP has actually been using technology with similar capabilities dating back to the early 2000s.
As part of its work, the committee has called for the RCMP to provide a list of warrants obtained as well as other related information about the use of spyware, however, this request has been met with resistance from the RCMP. This has prompted the committee to explore its options to compel further information in an appropriate setting such as an in-camera meeting or through redacted documents.
On Tuesday, Therrien told MPs from his years of experience pushing for updates to Canada's Privacy Act that, "to come to the conclusion that we need legislative change, we would first need to know how the current provisions have been applied, and to prove if there's to be any concern."
Further, the RCMP has refused offer any details about what specific software is being used, citing "the necessity to safeguard the ability to effectively use on-device investigative tools." While the government confirmed on Monday it is not the controversial software developed by Israeli firm NSO Group called Pegasus, MPs have questioned why the name of the vendor or vendors the RCMP uses are being withheld.
"It's hard to imagine how the name of a vendor would undermine national security," said Liberal MP Nathaniel Erskine-Smith during the first of Tuesday's two meetings.
"There is absolutely no reason why that should not be disclosed, and plenty of good reasons that it should," Deibert said.
While some committee members have expressed a desire to extend their probe, no further public meetings to hear from witnesses have been scheduled as part of this study. When the committee initially agreed to take on this special summer study, the aim was to finalize the report—with potential recommendations for changes to Canada's privacy laws or oversight mechanisms, as has been suggested by some witnesses— in advance of the start of the fall sitting, on Sept. 19.
IN DEPTH
Budget 2024 prioritizes housing while taxing highest earners, deficit projected at $39.8B
In an effort to level the playing field for young people, in the 2024 federal budget, the government is targeting Canada's highest earners with new taxes in order to help offset billions in new spending to enhance the country's housing supply and social supports.
'One of the greatest': Former prime minister Brian Mulroney commemorated at state funeral
Prominent Canadians, political leaders, and family members remembered former prime minister and Progressive Conservative titan Brian Mulroney as an ambitious and compassionate nation-builder at his state funeral on Saturday.
'Democracy requires constant vigilance' Trudeau testifies at inquiry into foreign election interference in Canada
Prime Minister Justin Trudeau testified Wednesday before the national public inquiry into foreign interference in Canada's electoral processes, following a day of testimony from top cabinet ministers about allegations of meddling in the 2019 and 2021 federal elections. Recap all the prime minister had to say.
As Poilievre sides with Smith on trans restrictions, former Conservative candidate says he's 'playing with fire'
Siding with Alberta Premier Danielle Smith on her proposed restrictions on transgender youth, Conservative Leader Pierre Poilievre confirmed Wednesday that he is against trans and non-binary minors using puberty blockers.
Supports for passengers, farmers, artists: 7 bills from MPs and Senators to watch in 2024
When parliamentarians return to Ottawa in a few weeks to kick off the 2024 sitting, there are a few bills from MPs and senators that will be worth keeping an eye on, from a 'gutted' proposal to offer a carbon tax break to farmers, to an initiative aimed at improving Canada's DNA data bank.
Opinion
opinion Don Martin: Gusher of Liberal spending won't put out the fire in this dumpster
A Hail Mary rehash of the greatest hits from the Trudeau government’s three-week travelling pony-show, the 2024 federal budget takes aim at reversing the party’s popularity plunge in the under-40 set, writes political columnist Don Martin. But will it work before the next election?
opinion Don Martin: The doctor Trudeau dumped has a prescription for better health care
Political columnist Don Martin sat down with former federal health minister Jane Philpott, who's on a crusade to help fix Canada's broken health care system, and who declined to take any shots at the prime minister who dumped her from caucus.
opinion Don Martin: Trudeau's seeking shelter from the housing storm he helped create
While Justin Trudeau's recent housing announcements are generally drawing praise from experts, political columnist Don Martin argues there shouldn’t be any standing ovations for a prime minister who helped caused the problem in the first place.
opinion Don Martin: Poilievre has the field to himself as he races across the country to big crowds
It came to pass on Thursday evening that the confidentially predictable failure of the Official Opposition non-confidence motion went down with 204 Liberal, BQ and NDP nays to 116 Conservative yeas. But forcing Canada into a federal election campaign was never the point.
opinion Don Martin: How a beer break may have doomed the carbon tax hike
When the Liberal government chopped a planned beer excise tax hike to two per cent from 4.5 per cent and froze future increases until after the next election, says political columnist Don Martin, it almost guaranteed a similar carbon tax move in the offing.
CTVNews.ca Top Stories
What to know about avian influenza in dairy cows and the risk to humans
Why is H5N1, or bird flu, a concern, how does it spread, and is there a vaccine? Here are the answers to some frequently asked questions about avian influenza.
'I was scared': Ontario man's car repossessed after missing two repair loan payments
An Ontario man who took out a loan to pay for auto repairs said his car was repossessed after he missed two payments.
opinion The special relationship between King Charles and the Princess of Wales
Royal commentator Afua Hagan writes that when King Charles recently admitted Catherine to the Order of the Companions of Honour, it not only made history, but it reinforced the strong bond between the King and his beloved daughter-in-law.
Pro-plastic lobbyist presence at UN talks is 'troubling,' say advocates
Environmentalist groups are sounding the alarm about a steep increase in the number of pro-plastic lobbyists at the UN pollution talks taking place this week.
'Too young to have breast cancer': Rates among young Canadian women rising
Breast cancer rates are rising in Canada among women in their 20s, 30s and 40s, according to research by the University of Ottawa (uOttawa).
Charlie Woods, son of Tiger, shoots 81 in U.S. Open qualifier
Charlie Woods failed to advance in a U.S. Open local qualifying event Thursday, shooting a 9-over 81 at Legacy Golf & Tennis Club.
$70M Lotto Max winners kept prize a secret from family for 2 months
During a special winner celebration near their hometown, Doug and Enid shared the story of how they discovered they were holding a Lotto Max ticket worth $70 million and how they kept this huge secret for so long.
Courteney Cox says her partner Johnny McDaid once broke up with her in therapy
Courteney Cox's longtime partner Johnny McDaid once broke up with her in a therapy session.
Are Canadians getting sick from expired food?
A new survey by Dalhousie University's Agri-Food Analytics Lab asked Canadians about their food consumption habits amid rising prices.
Local Spotlight
'It was instant karma': Viral video captures failed theft attempt in Nanaimo, B.C.
Mounties in Nanaimo, B.C., say two late-night revellers are lucky their allegedly drunken antics weren't reported to police after security cameras captured the men trying to steal a heavy sign from a downtown business.
Fergus, Ont. man feels nickel-and-dimed for $0.05 property tax bill
A property tax bill is perplexing a small townhouse community in Fergus, Ont.
Twins from Toronto were Canada's top two female finishers at this year's Boston Marathon
When identical twin sisters Kim and Michelle Krezonoski were invited to compete against some of the world’s most elite female runners at last week’s Boston Marathon, they were in disbelief.
Mystery surrounds giant custom Canucks jerseys worn by Lions Gate Bridge statues
The giant stone statues guarding the Lions Gate Bridge have been dressed in custom Vancouver Canucks jerseys as the NHL playoffs get underway.
'I'm committed': Oilers fan won't cut hair until Stanley Cup comes to Edmonton
A local Oilers fan is hoping to see his team cut through the postseason, so he can cut his hair.
'It's not my father's body!' Wrong man sent home after death on family vacation in Cuba
A family from Laval, Que. is looking for answers... and their father's body. He died on vacation in Cuba and authorities sent someone else's body back to Canada.
'Once is too many times': Education assistants facing rising violence in classrooms
A former educational assistant is calling attention to the rising violence in Alberta's classrooms.
What is capital gains tax? How is it going to affect the economy and the younger generations?
The federal government says its plan to increase taxes on capital gains is aimed at wealthy Canadians to achieve “tax fairness.”
UBC football star turning heads in lead up to NFL draft
At 6'8" and 350 pounds, there is nothing typical about UBC offensive lineman Giovanni Manu, who was born in Tonga and went to high school in Pitt Meadows.