The revelation that Montreal police spied on a journalist has exposed a newly legalized police power – the ability to track people via signals from smartphones and their embedded GPS chips.
Experts say this kind of surveillance is likely one of the first manifestations of the "real-time tracking" warrants that Parliament put on the books last year.
These 2015 amendments to the Criminal Code were part of The Protecting Canadians from Online Crime Act. This legislation was described by the Conservative government of the day as being fundamentally about stopping cyberbullying.
The law also allows police to apply for warrants to use new types of technology in their surveillance operations, including monitoring what targets are doing as they do it.
Observers say that the Montreal case indicates police used these technological surveillance powers this year to spy on a journalist not accused of a crime. La Presse columnist Patrick Lagacé said this week that authorities sought permission to track his movements using the global positioning system chip in his iPhone. He is one of several Quebec journalists who revealed this week that authorities have targeted their cellphone data.
The spying was done by police forces trying to stop leaks to the media from their organizations. The reports prompted a public outcry and a judicial inquiry has been called. The cases also highlight how police, if backed by judges, can compel telecommunication corporations to release records that show what clients are doing with their smartphones.
Most of the Quebec cases involve orders for call logs or information identifying who called whom on a particular date, which is relatively routine. But Mr. Lagacé said police were trying to track him in real time.
"I was not reporting on national security issues. I was not reporting on terrorism," he said in an interview with The Globe, describing the surveillance as outlandish in the context of a routine police investigation.
Mr. Lagacé said he and his editors were given a verbal debriefing by Montreal police detectives after La Presse learned of the surveillance. The police affidavits sworn in support of the request for warrants to monitor his calls and movements are sealed, but here's what he says he was told.
The detectives used the term "mandat de localisation" to describe one of the warrants. This language is consistent with the French version of the new Criminal Code clauses relating to warrants for real-time tracking by police.
Such measures could include police using technology to "activate" the chip to disclose its location to someone other than the user.
Mr. Lagacé said detectives told him they obtained "a tracking warrant that permits, if one wants, to activate the GPS chip of a cellular telephone, to locate your cellphone at a given moment."
This power is distinct from others, he was told, such as police putting a GPS device onto a car, or by triangulating a cellphone's location by looking at its proximity to cell towers. He adds he was told it would be precise enough to confirm that two tracked suspects had met.
Montreal's police chief has suggested the power was never used. Mr. Lagacé says that while he found out a warrant had targeted his iPhone, he does not know if it was ever actually tracked.
The Globe asked several mobile-phone carriers whether they could activate a client's GPS chip in this way if told to do so by a judge. "It could be technologically possible," Bell Canada spokesman Mark Langton said, adding that he does not know Bell to have done this. Telus Corp. spokeswoman Luiza Staniec replied that "we will provide real-time GPS locations ... when ordered to by a court, in which case we are required by law to comply."
She pointed out that Telus, like other carriers, more routinely uses this capability for emergencies – such as pinpointing GPS signals from someone who placed a 911 call.
Privacy advocates have lobbied the government officials not to undermine such emergency capabilities by allowing police to use them in criminal investigations. Some phone companies don't take chances. For example, the engineers at Apple are reputed to take privacy so seriously that only a customer, and not police, can access an iPhone GPS chip.
Given that, any tracking that police would have actually achieved on Mr. Lagacé's iPhone would "seem like a big deal," says Chris Parsons, who works at the Citizen Lab at the University of Toronto. "That would indicate that any privacy protections that were baked into the phone, there's a way around them."
But over all, "geolocation" capabilities are not new for Canadian police. A regulatory accord revealed by The Globe in 2013 shows that, for the past 20 years, Canadian cellphone companies have been told by the government that if they want access to federal air waves, they need to be able provide some surveillance when lawfully ordered. This includes "the most accurate data on the specific geographical location" of any cellphone on their network.
Criminal lawyers versed in police surveillance say they know of no case law yet about any police officer secretly pinging anyone's GPS chips. "I have never heard of it," Frank Addario said. Mr. Addario and co-counsel Michael Lacy earlier this year forced public disclosures about how Canadian police use so-called Stingray machines in hopes of getting fixes on criminals' cellphones.
Police in Quebec may be battling perceptions that their surveillance campaigns have run amok. But RCMP Commissioner Bob Paulson has lately complained that his detectives are "going dark" because people can now encrypt just about everything on their smartphones.
Mr. Paulson is seeking stepped-up surveillance powers, and says police are only as good as the warranted surveillance powers that Parliamentarians and judges give them. People should not be surprised when police use their legislated powers, he says.
"When you make applications to courts to seek those authorities, as long as everything is disclosed and the limits of your proposed investigative strategy are disclosed and it is understood as being linked to the evidence you are seeking, I don't know what else the police could be asked to do."