RCMP boss Bob Paulson says force needs warrantless access to ISP user data
RCMP warned PMO about problem, but critics don’t see need for new police powers
Police, Power and Privacy is a special five-part investigative series that looks at why police across the country want new powers to track tech-savvy suspects, and why privacy advocates say they should be denied.
The RCMP is lobbying the Prime Minister's Office for new powers to bypass digital roadblocks in cases where national security threats and other "high priority" suspects hide online and operate anonymously beyond the reach of police.
"I can safely say that there's criminal activity going on every day that's facilitated by technology that we aren't acting on," RCMP Commissioner Bob Paulson told CBC News and the Toronto Star in an exclusive interview.
The problem is a major focus for Paulson, and one that only gets more urgent as technology advances and suspects find new ways to cover their digital tracks.
"Because of our inability — and the future inability — to protect Canadians, both from garden variety criminality and from the national security threat, I see that as really significant," Paulson said. "I'm consumed with trying to make sure that we're able to mitigate the threat."
But privacy advocates and civil liberties groups remain unconvinced that effort requires expanded investigative powers for police.
On June 23, the RCMP sent Prime Minister Justin Trudeau's national security adviser a briefing note that says Canada lacks strategies and laws to address the technological limitations of police investigations.
The RCMP argues the U.S., Australia, the U.K. and New Zealand — members of our Five Eyes intelligence alliance — do much more than Canada to help their police forces deal with high-tech obstacles like encryption, and interception and storage of digital information.
"It's a challenge," Paulson said. "I think we're lagging."
The RCMP briefing note closely mirrors four policy ideas floated in the federal government's green paper on national security, which is open for public consultation.
The RCMP and other police leaders say aside from requests for basic subscriber information, these additional powers would be used only in targeted investigations and would require a warrant from a judge.
Paulson directed his force to provide CBC News and the Toronto Star access to ongoing "high prioirity" investigative case files to demonstrate what police call "going dark" — the digital barriers to tracking suspects and gathering evidence.
"If you've got a complaint of criminality on the internet, you're going to have to think about where you go with that complaint because I don't know that we can help you," he said. "And that's a terrible thing for a person who's in charge of a police force to say when citizens, when companies, when corporate Canada, or indeed the government comes to us and says, 'Hey, we've been victimized on the internet.'"
Paulson fully expects he'll be criticized by civil libertarians and privacy advocates, but he insists Canadians need to understand the growing digital challenges police face and that our laws need to be updated.
"I think Canadians need to be asked, 'What do you expect the police to be able to do in this digital world?'"
He says privacy is increasingly being understood as a right to complete anonymity online.
If you've got a complaint of criminality on the internet, you're going to have to think about where you go with that complaint because I don't know that we can help you.- RCMP Commissioner Bob Paulson
"In other words, absolute privacy is everybody's right," he said. "And for me to sit here and say, 'OK, hold on, that's not right,' immediately I get dismissed as someone who doesn't respect privacy.
"That's the space that we need to talk about. What's reasonable, what's unreasonable."
One of Paulson's top priorities may also be the most controversial.
"I've been consistently advocating for a warrantless access to subscriber information. I often get dismissed as, you know, as a troglodyte that doesn't understand people's privacy."
He's adamant Canada must return to a system that allows police easier access to basic phone and internet subscriber information.
Police, Power and Privacy: A five-part series
In 2014, the Supreme Court ruled in a child pornography case that police had violated the suspect's expectation of online privacy when investigators requested the basic subscriber information (BSI) linked to the IP address he was using. The ruling says absent a reasonable law, the request for the suspect's BSI constituted a search and therefore police should have first obtained a warrant.
Before the ruling, police didn't hesitate to request BSI directly from telecom companies. In fact, the federal privacy commissioner released data that showed law enforcement made nearly 1.2 million such requests in 2013 alone.
Police now must apply for a warrant every time they want to look up a user's BSI. They say it takes time and paperwork, and when police are at the beginning of an investigation and want to look up an IP address, they don't always have sufficient grounds to obtain a warrant.
Paulson says the system causes delays and occasionally forces police to abandon investigations. He says the public and policy-makers don't fully understand the consequences of the ruling.
"We can query licence plates and get the subscriber of a car on the basis of the fact that the police are engaged in enforcement of the Traffic Act or another criminal investigation. We keep records of all that and we're accountable for that," he said. "I don't think it's unreasonable."
Paulson and many other police leaders across the country are hoping the Liberal government will draft a new "reasonable law" to create a system of "administrative access" to BSI that could be overseen by senior police or prosecutors — not the courts.
'Not a trivial ask'
But critics say police must first provide far greater evidence that investigations are being abandoned.
They also say basic subscriber information can actually be extremely revealing.
"When it is connected to an IP address, [BSI] reveals an incredible amount of information about the things that you do online," said Brenda McPhail, director of the Privacy and Technology Surveillance Project at the Canadian Civil Liberties Association.
McPhail says with a simple IP address police can discover a user's identity, where they live and build a profile based on online activity.
"Let's face it, we live half of our lives online these days, so it is not a trivial ask."
Christopher Parsons, a technology and privacy researcher with the Citizen Lab at the University of Toronto's Munk School of Global Affairs, says any new law must protect against abuses.
"The solution is not to say, 'It's very hard for police, just trust us and let us sign off on our own warrants.' Turning to other jurisdictions such as the U.S., we know it doesn't work. We know that police will over-exercise that power."
Paulson has mixed views on the other policy proposals discussed in the government's green paper.
For example, he disagrees with the Canadian Association of Chiefs of Police that courts should be able to order suspects to hand over their passwords and/or encryption codes.
He says he struggles with the idea of compelling suspects to potentially incriminate themselves.
"It's fraught," he said. "I don't see a state where the police are ordering people to give up information. It would be like ordering a statement. That's at odds with how I understand what we do. I don't see that happening."
The solution is not to say, 'It's very hard for police, just trust us and let us sign off on our own warrants.'- Christopher Parsons, technology and privacy researcher at the University of Toronto
But the commissioner does support proposals to require communications providers to build intercept and data-retention capabilities into their networks.
He insists access to a suspect's private data or communications would require a warrant authorized by the courts.
"We are not at all interested in surveilling citizens, except to the extent that we can demonstrate to others that they're engaged in criminal activity that threatens Canadians."
Paulson says public debate on these issues is urgently needed because police are increasingly hitting digital dead ends in terrorism and child exploitation investigations.
"I feel responsible for the safety and security of Canadians in the face of this challenge."