(Ottawa) The protection of personal information and privacy is not part of the DNA of the Royal Canadian Mounted Police (RCMP). This is why it is important to regulate the use of spyware by the federal police force in the context of its criminal investigations, believes the former commissioner for the protection of privacy, Daniel Therrien.
Posted at 12:33 p.m.
Updated at 2:33 p.m.
Mr. Therrien, who was commissioner from 2014 until very recently, unhesitatingly endorses the recommendation made on Monday in this file by his successor Philippe Dufresne.
Testifying before a parliamentary committee on Monday, Dufresne said the RCMP should have a legal obligation to assess the privacy implications of such spyware before using it. Such an obligation would ensure that Canadians do not lose confidence in their institutions.
“The RCMP has a law enforcement culture as it is. It is true that the RCMP does not have particularly high expertise in privacy. I noted in the last months of the last year of my mandate a desire to increase knowledge of privacy at the RCMP. But it’s not their first instinct,” said Mr. Therrien.
Mr. Therrien stated that he was surprised to learn that the RCMP had been using such an intrusive investigative tool as spyware for several years during his testimony before the Standing Committee on Access to Information, Privacy and Ethics of the House of Commons, Tuesday.
During the eight years he was at the helm of the Office of the Privacy Commissioner, the police force never consulted him on the propriety of using such “highly intrusive” technologies.
He also urged elected officials to amend the Privacy Act in order to impose on the RCMP the legal obligation to assess the consequences on respect for the privacy of these new technologies and also to specify generally the circumstances in which these assessments should be made. A consultation of the Office of the Privacy Commissioner would also be appropriate, according to him.
“It takes clear legal rules, high legal standards and independent oversight,” insisted Mr. Therrien. “Since this technology is very intrusive, should backups be improved? The answer is without a doubt,” he added.
At the instigation of Bloc Québécois MP René Villemure, the committee was convened for an extraordinary work session after the RCMP admitted to having used spyware to secretly obtain data from a cell phone or a computer.
Created in 2016, the program is managed by the RCMP’s Secret Access and Intercept Team (EASI). This division is equipped with “on-device investigation tools”. Installed on “a targeted computing device”, these tools allow “the collection of electronic evidence from the […] secretly and remotely,
The RCMP confirmed the use of these methods in documents that were tabled in the House of Commons before the adjournment in June. She wouldn’t say if it was Pegasus software, which was banned by the US Congress from US territory. This spyware developed by NSO Group, an Israeli company, has been used to spy on political leaders, activists and journalists – among others, the Saudi Jamal Khashoggi, assassinated in 2018.
But the Minister of Public Security, Marco Mendicino, clarified on Monday that it was not about this software. However, he would not say which was used by the RCMP. Senior RCMP officers said on Monday that they use these technologies sparingly and after obtaining judicial authorization.
RCMP Commissioner Brenda Lucki said in a letter to MPs who are members of the committee that spyware has been used in 32 investigations involving 49 devices since 2017.
Speaking after former commissioner Daniel Therrien on Tuesday, the president of the Access and Privacy Council of Canada, Sharon Polsky, said she feared police drift.
The police sometimes use tools without documenting what is being done. The technology itself is morally neutral, but how one justifies its use makes a big difference. That’s why this study is so important, she said.
“We know that the Stasi spied on its citizens. You don’t expect it to be the same in democracies. But it is happening in Canada and elsewhere,” he added.