The Royal Canadian Mounted Police (RCMP) has confirmed that it has used spyware in 32 police investigations since 2017, as part of the work of the Standing Committee on Access to Information, Privacy and ethics. Representatives of the federal police and the Minister of Public Security, Marco Mendicino, spent most of their time evading questions from elected officials on this subject, to the point of arousing mistrust and disappointment.
“It’s not like we abused this technology,” said Liberal MP Lisa Hepfner, in a futile attempt to come to the aid of the RCMP and her colleague Marco Mendicino. It is true that the use of spyware is limited: 49 devices were spied on in 32 investigations for cases as important as kidnappings, murders, terrorist activities. It’s about five files per year. In all cases, the RCMP obtained prior judicial authorization.
However, recklessness should certainly not be used as public policy in the control of spyware. No police force should benefit from the blind trust of the public and elected officials responsible for ensuring that the balance between public security and the rights to privacy and the presumption of innocence is respected.
There are several reasons to question the conduct of the RCMP and Minister Mendicino. The federal police have never sought advice from the Privacy Commissioner of Canada before using spyware in their investigations. The use of these intrusive technologies dates back to at least 2017. But it was only recently that the RCMP began writing a first report on their impact. Neither the RCMP nor Mr. Mendicino wanted to reveal the name of the company with which they are negotiating, but it is not the controversial Israeli group NSO.
This crude secrecy has little to do with the need to protect ongoing investigations or the working methods of the RCMP. Above all, it has the advantage of protecting the RCMP and the Trudeau government from potentially negative fallout. During his appearance before the Committee, a professor of political science at the University of Toronto, Ronald Deibert, argued that spyware manufacturers have very flexible ethics rules. Some of them count among their clients rogue or authoritarian states that participate in mass surveillance of political opponents, journalists, activists.
We have a right to know whether or not Canada is negotiating with a company that makes life easier for undemocratic states. We are entitled to ask for more transparency on the suppliers of the RCMP, and to demand that the Trudeau government take concrete measures to ensure that we will not encourage companies whose customers are governments hostile to democracy or to human rights.
At the end of the hearings, Bloc Québécois MP René Villemure expressed his disappointment. “I saw the culture of avoidance, and not the culture of privacy,” said the ethicist and philosopher who is behind the holding of this commission on the supervision of spyware.
The debate should not end there. Spyware cannot be compared to traditional techniques like wiretapping or spinning. They make it possible to remotely pick up all the content of a mobile device, to activate the camera or the microphone. Innocent third parties may suffer. Malicious companies or states can also use spyware against Canadians.
It would be futile and irresponsible to demand the prohibition of spyware in the police arsenal. Investigative techniques must keep pace with technological developments. However, we will need a new body, neutral and independent, to oversee the purchase and use of these technologies. It is the best guarantee to preserve the balance between public security and private life, to offer a bulwark against the risk of arbitrary police action and to put ethics at the heart of business decisions in Canada.