Alta. judge OKs challenges to cellphone tracking

Defence lawyers decried use of secret tech

A Calgary judge has paved the way to allow accused criminals to challenge the use of a powerful cellphone tracking technology.

Canadian police have, for years, been using cell site simulators to identify and track citizens’ cellphones, often without fully informing the courts or the public. It has left suspects before the court with little avenue to challenge the tactics police used to identify them.

But an Alberta provincial court has approved a challenge to how the cell site simulators, also known as IMSI-catchers or by the brand name Stingray, are used to identify suspected criminals.

Cell site simulators are pieces of hardware that mimic the telecommunications towers used by phones to relay messages and to send and receive calls. By tricking phones into thinking they are cellphone towers, the simulators can scrape identifying information about the phones — including a unique identifier that can be used to obtain the owner’s name and address.

In the case before the Calgary courts, police were surveilling a suspected drug dealer and a residence believed to be his stash house. Investigators had tapped his cellphone, but while watching the suspect, noticed he was making calls that weren’t showing up on their wiretap.

Police ran their cell site simulator to identify what they believed was the suspect’s new phone. When they got a wiretap on that device, it led them to a second suspect, who is now also facing a slew of drug and weapons offences.

The trouble is, cell site simulators are a blunt instrument. Calgary Police told the court that their device is capable of collecting the unique fingerprints of all nearby phones within a 500-metre radius. It can be hard to guarantee, with absolute certainty, that the phone they identified was, in fact, their suspect’s phone. But the Crown wouldn’t disclose anything specific about the cell site simulator itself.

Lawyers for the accused argued to the court that they could not mount a full defence if they couldn’t challenge the technology used to identify their client in the first place.

Crown lawyers argued that details about the specific technology used is sensitive information that, if shared with the court or the public, would compromise future investigations. The Crown told the court that

“the potential capabilities of the device are not a material issue in this trial.”

The court disagreed, offering a rare chance to challenge the use of this technology. Justice Harry Van Harten wrote that, to allow the defence to challenge the constitutionality of the wiretaps without providing the details of how those wiretaps were obtained, “would be like inviting someone to a dinner party without saying where it was being held.”

The Crown will have the chance to argue to the judge that some identifying technical information about the devices should be withheld.

Even though the court did not make any sweeping judgments about how cell site simulators are used, the ruling may yet represent a turning of the tide for how the technology is entered into evidence.

“This case is really helpful because it establishes an important baseline,” says Tamir Israel, staff lawyer at the Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic at the University of Ottawa, who has extensively researched the use of these cellsite simulators.

“You can’t actually mount a defence without being able to test how these devices are working.”

Depending on which model is used, and how it is used, these cell site simulators cannot only identify the owner of a cellphone, but track their whereabouts and movements. Israel said the Alberta case demonstrates how these devices can be incredibly powerful in terms of identifying suspects, and therefore ought to be subject to a higher level of scrutiny from the courts.

“The court, here, did make it clear that a lot of this evidence is going to be central to this person’s defence,” Israel said.

In a complex Mafia trial, which began in 2015 in Montreal, Crown attorneys fought for months to avoid disclosing basic details of how the cell site simulators work.

Submissions before a Quebec appeals court revealed that cell site simulators were known to produce inconclusive results. The details about the fallibility of the devices were purposefully withheld from the courts.

“The wording specific to the (cell site simulator) must not reveal sensitive police techniques,” read one RCMP policy filed with a Quebec court.

In the end, the RCMP were spared from having to disclose specific technological information, as the accused mobsters pleaded guilty on murder conspiracy charges.

As these devices become more regular tools for police, Israel said to “expect more challenges along this road.”

The case law on the issue is new, but investigators have been using the technology for years.

A federal court granted permission to the Canadian Security Intelligence Service to use these devices in 2017, though they had already been in use for years. The same year, the RCMP finally admitted it used cell site simulators, but only after it was reported by technology site Motherboard.