This article originally appeared on VICE Canada.
Canada's federal police continued to snoop on Canadians' cellphones and computers for at least a month after the Supreme Court ruled it unconstitutional, new documents prove.
Financial records obtained by VICE through the Access to Information Act show the extent to which the Royal Canadian Mounted Police (RCMP) used federal legislation to obtain information on Canadians from all major phone companies without warrants. Instead, police paid small fees for each of these requests.
The Supreme Court ruled that practice illegal in its June 13, 2014, decision on R. v. Spencer, writing that police need judicial authorization before making those sorts of requests.
However, the records show telecom companies Telus and Bell both continued to fork over Canadians' information even after that decision was handed down.
The Newfoundland and Labrador detachment of the RCMP made 51 requests for a "phone search" to Telus between July 1 and August 1, 2014. They paid $76 for the searches. Over the course of July, the British Columbia detachment also made 129 phone search requests to Telus, and another 27 to Bell—two phone searches and 25 Service Profile Identifier (SPID) requests—running the west coast RCMP division $258.
SPID information is used to help police identify which phone lines they are able to put taps or traces on.
Many invoices cover the entire month of June, so it is unclear if the requests stopped exactly on June 13, or whether they continued later into the month.
VICE's analysis of the records show that the RCMP paid over $1.6 million to Canada's cellphone companies since 2010 in order to skirt the normal process of having these requests approved by a judge.
The documents only deal with the RCMP, which is primarily tasked with federal investigations like child pornography and terrorism, but also do basic criminal investigations in many towns and cities. The documents do not include data from provincial police forces, who likely made the bulk of these Personal Information Protection and Electronic Documents Act (PIPEDA) requests. Nor do they include the spy agencies Canadian Security Intelligence Service or Communications Security Establishment Canada, or the Canada Revenue Agency, which have also been known to use the process.
Spokespeople for both the telecommunications companies and the government deny that any sensitive information was being handed over through this process. Law enforcement often refers to the information provided as "tombstone" or "phonebook" information—usually a name, address, and phone number. All law enforcement needs to show the company in order to access this information is an IP address.
However, previous VICE investigations revealed that, thanks to the informal process and lack of oversight, police often used these powers to ask for, and obtain, users' passwords, GPS location, and other other personal information.
The government had been adamant that this warrantless disclosure process was legal under PIPEDA, which came into force in 2000.
The documents show that the warrantless disclosure process went back until at least 2004, a full decade before it was stopped by the courts.
Standard operating procedure for the RCMP would be to compensate companies if they voluntarily offered up the data. The fee structure would vary from company to company, but there was rarely a fee applied if police had a warrant.
If a request for a subscriber's information was sent via email to Rogers, the RCMP would pay the company $1.50. The fee jumped to $10 if the request was made over the phone, or if it was an "urgent email."
Bell had a similar fee structure. Bell Aliant, however, which operates in the Atlantic provinces, charged a flat fee of $150 per month, without detailing any breakdowns for specific requests. That agreement lasted until the end of June, 2014.
Some charges on the invoices were for requests that would almost certainly have had to come with a warrant, like phone intercepts, for which Telus charged $1,500 per request. Those sort of requests could detail specific call information, or even the content of the conversations, as well as metadata and other pertinent information. They are required to be approved by a judge.
VICE asked the RCMP for clarification on when exactly the warrantless requests stopped, but did not receive a response.
Overall, the records document hundreds of thousands of informal requests made by police over those four years.
No detachment reported any invoices from August until November, when the documents were released to VICE. The RCMP did not report any costs at all in that time, not even for things like phone intercepts, which require a warrant but for which the phone companies still charged a fee. Either those requests stopped outright after the Spencer ruling, the companies stopped charging fees, or they were paid with a different RCMP budget.
Transparency reports released by Rogers and Telus provide some context for this data.
Telus says that in 2013 it received more than 100,000 requests from law enforcement for subscriber information, and the vast majority appear to have been warrantless requests. Rogers received nearly 175,000 requests, but only half were made without a warrant.
Bell, Canada's largest telecommunications provider, has refused to release any information on the matter. When VICE asked a spokesperson for Bell when the company discontinued responding to these PIPEDA requests and how much they charged to fulfill the requests, the spokesperson refused to answer, responding by saying only, "Bell always follows the law in disclosing information to government and other law enforcement agencies."
Companies usually admit that they voluntarily coughed up sensitive information in child exploitation cases, or in emergency situations.
Both Telus and Rogers say they assumed the cost of most requests that came with warrants, but charged for some voluntary requests. They declined offers to expand on that.
The big three phone providers weren't the only ones using this system. Smaller providers like WIND, Sasktel, Public Mobile, and Iristel all voluntarily provided documents under this process.
"Following the Spencer decision we stopped providing any subscriber information to law enforcement without a warrant except in emergency situations, such as when a customer calls 9-1-1 for help or is lost at sea, or when the information is already published in a phone book," a Telus spokesperson told VICE in an emailed statement.
VICE requested documentation for all RCMP costs paid to telecommunications companies under the relevant sections of PIPEDA. The records provided were spotty at best. Some departments kept running spreadsheets of their requests and costs. Others simply kept a file of their monthly invoices.
It seems likely that the $1.6 million figure is significantly lower than the real dollar amount, given the haphazard nature by which the records were submitted by the RCMP.
Some departments provided records dating back to 2004, while others only went back to 2010. Several neglected to include 2014 numbers. While Ontario kept a central database, the Alberta RCMP was split between Calgary and Edmonton. The Ontario office detailed a decade of numbers, but information from the 2010–11 fiscal year was missing. Several pages from different provincial detachments were redacted to hide descriptions of the operations under which the information was being requested, while other pages had the type of request, cost, and date all blacked out.
The three territories did not provide any records.
While the RCMP provided over 1,000 pages of records, it's impossible to tell how much is missing.
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