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Wiretapping laws make it a crime for anyone to intercept private messages without prior judicial permission.Fred Lum

Police have determined that a device that functioned as a cellphone tower has "likely unlawfully intercepted" private text messages from unsuspecting bystanders.

This pronouncement highlights the growing capabilities of, and legal problems posed by, portable surveillance devices that target cellphone data. The findings centre on federal correctional officials who launched a surveillance effort that aimed to locate inmates' contraband phones in an Ontario prison, but which also ended up intercepting several text messages sent by jail guards.

Read also: RCMP reveals its use of cellphone-tracking machines

Legal and privacy observers say this determination of unlawfulness likely amounts to the first known police allegation of such a device violating Canada's Criminal Code. Yet, no one is poised to face any charges. In August, authorities closed the case after concluding they would be unlikely to win any prosecution, according to a memo obtained by The Globe and Mail.

The finding by the police probe comes as surveillance gadgets variously known as Stingrays, cell-site simulators, or IMSI catchers are growing more capable, and spawning fears about whether criminals are now using them to dredge data from the smartphones of the wider public. Government officials are facing questions about whether they are able to police such activity, or even be trusted to use such devices themselves.

As first reported by The Globe, the Ontario Provincial Police (OPP) in 2015 launched a criminal investigation into the Correctional Service of Canada's (CSC) surveillance activities, and whether they broke Canada's laws against warrantless wiretapping. The internal OPP memo lays out the findings of the investigation.

On Aug. 3, OPP Detective Inspector Gerry Scherer wrote to correctional officials that he was closing the prison-surveillance case with no charges. His memo recaps how the Warkworth Institution, near Peterborough, hired a contractor who had access to powerful cellphone-spotting technology as the prison struggled to keep phones out of the hands of inmates. Det. Scherer wrote that the contractor's particular device was "capable of intercepting the SMS text messages of any mobile device operating within its operational range."

Wiretapping laws make it a crime for anyone to intercept private messages without prior judicial permission. Prison authorities never got such approval. Senior CSC officials pulled the plug on the investigation after four months upon learning the machine had intercepted jail guards' communications.

Det. Scherer's memo says the probe only found evidence that six text messages had been intercepted. No explanation is given as to why the device only sporadically intercepted the texts.

Detectives seized a laptop that had been used by the prison-surveillance team and found records revealing the phone-tracking machine had been switched on "at least" 2,200 times over the four-month period. There was a possibility that "some sessions may have been deleted," Det. Scherer wrote, referring to periods of active surveillance.

But the detective also said it looked to him that, for almost all the time it was running, the device captured only data such as IMSI numbers. Such unique digital identifiers are associated with every cellphone and can be used to help discern a phone's location, but reveal nothing about who is using a phone or what they are saying on it.

Evidence gathered by police suggested the contractor "appears to have acted independently" in terms of any intercepted texts, according to the OPP memo. But police were not able to draw conclusions about whether he could be considered solely responsible for all, or even most, of the unlawful intercepts.

Given this, Det. Scherer wrote his conclusion: "Should charges in relation to the unlawful interception be laid, there would not be a reasonable prospect of conviction. As a result the OPP will not proceed with the laying of charges at this time."

The OPP confirmed to The Globe on Monday what was communicated in the Aug. 3 memo. "Criminal charges will not be laid in this matter," Staff Sergeant Carolle Dionne said.

Several Canadian legal and privacy experts contacted by The Globe said they knew of no similar cases. However, in the spring, Public Safety Minister Ralph Goodale announced he has tasked federal agents with investigating IMSI catcher use in Ottawa. This followed a CBC report that found unlawful surveillance was likely taking place in the capital after a reporting team moved through the city with a device supposedly capable of spotting IMSI catcher activity.

Meantime, the Office of the Privacy Commissioner of Canada has resumed its own probe into the surveillance at Warkworth Institute. "It had been put on hold as we awaited the completion of a related investigation by the Ontario Provincial Police," spokeswoman Tobi Cohen said.

A spokesman for the federal prison authority stressed that police never found evidence that any of its own officials engaged in misconduct. "The OPP investigation concluded that a civilian contractor may have unlawfully intercepted a small number of text messages," the Correctional Service of Canada's Avely Serin said.

Previously disclosed material obtained by The Globe shows that the civilian contractor was Peter Steeves, a Quebec-based surveillance specialist who imported a device from Florida and who sold his services for $10,000. Contacted by The Globe, he said he was just happy to hear the criminal investigation had closed.

Born out of the Cold War, Five Eyes is a multinational spy network comprised of Canada, Australia, New Zealand, Great Britain, and the United States. The member states of Five Eyes gather intelligence about foreign countries, sharing it freely between themselves.

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