Police in Canada have been making their case in the media for greater powers to crack encryption and other digital privacy measures, which they say are increasingly stymying investigations into criminal activities online.
To demonstrate the need for expanded powers, federal police recently gave "unprecedented access" to two of the country's biggest media outlets. The RCMP allowed journalists from the Toronto Star and the CBC to access 10 "top secret" case files, which were essentially vetted summaries prepared by police, intended to illustrate the roadblocks that investigators say they are coming up against.
The CBC/Star five-part investigative series, which was published in November, sparked widespread debate about police powers and privacy online. In Motherboard, critics accused the police of using the media to spark "moral panic" about encryption. Talk from RCMP officials about criminals "going dark" mirrors language used by the FBI in the US, which has had its own debate about these issues going back for years.
Canada is in the midst of a public consultation on a green paper on national security that highlights four proposals, including one that would give police "warrantless access" to Canadians' basic internet subscriber information. Police argue that they need expanded digital powers to keep us all safe from crime. Privacy advocates, on the other hand, say that the police already have wide-ranging capabilities to surveil Canadians, maybe more now than than ever. And encryption, of course, isn't just used by criminals.
The CBC/Star investigation comes at a charged time, amid revelations that spies here had been illegally storing Canadians' metadata for a decade; that police in Quebec had been surveilling journalists in the province; and amid public consultations on Canada's controversial Bill C-51, which has been sold as an anti-terrorism measure.
In a wide-ranging conversation with Motherboard, Robert Cribb of the Toronto Star and Dave Seglins of the CBC talked about how they came to "embed" with the police, and their goals in this investigation.
This interview has been edited for length and clarity.
Motherboard: I want to start off by asking both of you what prompted this joint investigation.
Robert Cribb: I've been engaging with police on this now for more than a year and a half, and repeatedly trying to get to the place where we can talk about specifics. I believe, until our series, the police response has been rhetorical and amorphous. And that's been a frustration, in the sense that they talk about this risk to public safety, without detailing the evidence. There wasn't any clarity on the table. Dave Seglins: I went to a conference over a year ago, I think it was late October of 2015. I got invited, because of my Snowden work, [to] a national policing symposium on cybercrime.
"I said, look, you want the public to understand this? Bring us inside"
This was in Canada?
DS: It was in Toronto [with] policing leaders. It was Chatham House Rule. I was asked to be a panelist. They were all talking about going dark, and the problems they have as police agencies when the public discourse on the issues around police powers is so poor. I had the stage during my panel. They were grilling me on, why doesn't the media do more? I threw down the gauntlet. I said, look, you want the public to understand this? Bring us inside. Why don't we think about some embeds, or some ways you can get us to see the problems you say you're facing, and the limitations?
So this was the RCMP?
DS: This was the RCMP, but there were several police services. I had follow-up with the Calgary Police Service and we were in discussions for a period about doing an embed with them. There were Ontario Provincial Police, there was Toronto police.
I think it was in February of this year that I called the RCMP. I finally wound up with Jeff Adam, who is the head of Technical Investigation Services, and the lead policy guy on everything including going dark.
He said, we're interested in trying to facilitate media access to demonstrate some of these issues, but there's another guy on the doorstep, and that's Rob Cribb at the Star.
DS: Ultimately I said, I know [Rob] by reputation and I've no objection to that. Given the complexity of what they were suggesting, a co-production was perhaps necessary.
Out of that, from what I understand from your reporting, you were given this top-level security clearance to review 10 case files—this "unprecedented access"—to see how digital roadblocks are interfering with police investigations.
I'm just looking at the top of the CBC story. It says, "child predators, drug traffickers and extremists allegedly planning attacks or to join ISIS are escaping the eyes of the law because of increasingly impenetrable encryption and other digital roadblocks, according to this investigation."
Given this restricted access you received, how easy was it to independently vet the role that encryption and other digital roadblocks are playing in going dark, or if there are available workarounds to police?
DS: You have to understand what happened between February and September to understand the editorial decisions we made. First off, we had to fill out these sets of [security clearance] forms. That took four or five months. CSIS had to go through everything.
"They had prepared case summaries on eight of the cases. There were two that were done verbally"
At that time, the imagining was that we were going to get into one file. We thought, that's great. We kept pushing them, and saying what's coming along.
There's a couple of major problems on providing any kind of access to ongoing files. They have to consider the prospect for prosecution. If they are actively embedding journalists, the defendants and the lawyers will have right to all the disclosure around what that entails.
There's a provision in the wiretapping law that says it's actually a criminal offence for police to reveal the existence of a wiretap. So how do they bring us inside an investigation, when by law, they're forbidden from revealing to us aspects of the investigation? These were major impediments.
Not to mention the possibility of revealing police techniques that haven't seen the light of day, haven't shown up in court files, that they don't want the bad guys to know they're using, because they want them to remain effective.
"The question is, how could we independently verify. The reality is, we couldn't"
By the end of summer, it was looking like the impediments were too high.
Then the government tables a green paper in the first week of September and opens a public consultation that's going to close December 1. We go, holy shit. All of the things they're talking about behind the scenes, it looks like the police have had significant input into this green paper and they're floating all of these ideas that we've been learning about and hearing about in the backrooms and in off-the-record conferences.
Do you mean [as you were] preparing to do this eventual embed?
DS: I mean the four policy proposals that the police are advancing. We'd heard inklings of this, and here they are buried in the government's backgrounder. We said, you guys say you want public literacy [and] the public debate, giddyup, get us some cases.
They lined up an interview with the commissioner for us. We lined up interviews with [Director General of RCMP Technical Investigation Services] Jeff Adam, and we did those interviews before we had access to the 10 case files. That was in early October. At the end of it, we said, you guys, how are we not going to be shilling for you unless we give us some hardcore case examples. Okay? That was a very explicit demand of ours. To that point, it was just going to be a policy and positioning exercise.
That is the point where they said, OK. They had prepared case summaries on eight of the cases. There were two that were done verbally. So now we're at your question.
"Our intention was to create a needed public debate in this country"
The question is, how could we independently verify. The reality is, we couldn't. We took them as peace officers sworn to tell the truth, and through all our negotiations of trust, that they weren't inventing these out of thin air. I can tell you, the degree to which they were paranoid about our access to even these case summaries gave me confidence that these were based on reality. I don't think they were lying. These were details in those case summaries that we did not publish, but we had extensive background briefings on these where we got to ask questions to understand and critique, and say what's the issue here.
The short summaries that we published, we agreed [on] jointly, and constructed jointly from our notes and from the case summaries we provided. We wrote them because we wanted them to at least be in a narrative bite-size chunk that the public would grasp.
"The vetting is in the interviewing, which took place repeatedly"
My question wasn't whether you could independently verify that these cases were true, more just whether it's possible to go beyond what the police are saying in this instance and find out if there are other workarounds they have access to.
How good of a sense could you get of that from them, how big of a factor encryption and [other] digital privacy tools were in hampering their investigations and what workarounds are available to them?
RC: It's a question repeated dozens of times throughout the course of these conversations. That's all we can tell you. The reason [these cases] were chosen is because there were roadblocks where [the police] allege that they'd exhausted all opportunities that they had in their arsenal to get access to this material.
Back to your last question about independent verification. Of course, there's no way to independently verify. All but two [of these cases] have never been known to the public, they're not before the courts. How could you possibly?
To this point [Motherboard] raised, [of] why would you let the police cherrypick these cases, well how would you at VICE go about asking for cases that literally you have no knowledge of, that don't exist on the public radar? These are live cases that are under investigation.
"A lot of [privacy] advocates say this is actually a golden age of surveillance"
So you rely on [the police] to come forward with information, and the vetting is in the interviewing, which took place repeatedly. They had the file sitting in front of them and we pushed them to go further, in terms of detail.
You're talking to two journalists who've been around a pretty long time, and have a pretty good sense of bullshit. And I don't think when both of us walked out of that room, I think it's safe to say these were real cases.
In both series, the ones produced at the CBC and the Star, you interview digital privacy experts, and I noticed the Star ran an editorial from Tamir Israel and Christopher Parsons arguing that the RCMP is overstating its need for digital surveillance tools. A lot of [privacy] advocates say this is actually a golden age of surveillance.
How do you respond to that—that this is a golden age of surveillance?
RC: I think that all of the discussion around that is a great testament to the series. At the end of the day, we were very open and transparent about our intention, which was to create a needed public debate in this country, which is in its infancy at a time where we're about to make very serious decisions legislatively.
The fact that that editorial was in the paper, and that so much discussion has taken place on this issue—I would suggest to you that that would not be taking place had we not ventured into this unusual and unorthodox method.
DS: I would agree. I would say, look, there's some truth to what Tamir Israel and Chris Parsons are putting forward. Because that's the point. Put out the raw materials that the police are willing to provide as evidence, and let's have at it.
What needs to happen to make sure that Canadians are well enough informed to make good decisions? I know you've been saying this series was an attempt to get there. But I'd like to hear any other thoughts, as well.
DS: Well, forgive me, but three months of work to get this out, that's a first step. I hope you guys engage some of these issues. Pull them apart.
"I wouldn't have thrown away my entire professional reputation to do some PR for the police"
What do you think? What do you think of taking the step to say, OK police, pony up, give us examples. We'll put it to the public. What do you think of what we did here?
I started off by asking you how you would independently vet these ten case files, and that was one of my main questions when I saw this series. As I said, the lede of the CBC story [referenced] a lot of things people worry about: child predators, drug traffickers. These are all fears shared by your readers, and it made me wonder how we independently vet these case files.
RC: Are you concerned about vetting the allegations of the other side as well? Are you equally concerned about vetting the allegations of the Chris Parsons of the world, and those who…
Well of course. I'm a journalist, just like you.
DS: I wouldn't have thrown away my entire professional reputation to do some PR for the police if it didn't merit the public exposure, and if it didn't meet standards of us being able to critique and ask journalistic questions. We're not just regurgitating what they gave us.
The police on the front lines, the people we pay and employ and authorize to fight crime and terrorism, have a job to do. And when they start saying, hold on, we don't exactly have the tools we need, we chose to listen to that and say, OK, provide us with some [examples], let's let the public have a glimpse inside. That wasn't easy for them, it wasn't easy for us. But I think the whole benefit of it is to try to get this debate going.
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