Transcript: Privacy and Policing in a Digital World | Dec 12, 2016

Steve sits in the studio. He's slim, clean-shaven, in his fifties, with short curly brown hair. He's wearing a gray suit, blue shirt, and spotted blue tie.

A caption on screen reads "Privacy and policing in a digital world. @spaikin, @theagenda."

Steve says CRITICS OF CANADA'S
CONTROVERSIAL ANTI-TERRORISM
LEGISLATION, BILL C-51, CALL ITS
POWERS UNPRECEDENTED, AND ITS
CAPACITY FOR INTRUSIVE
SURVEILLANCE AND INFORMATION
SHARING A THREAT TO THE PRIVACY
RIGHTS OF ALL CANADIANS.
YET EVEN NOW, LAW ENFORCEMENT
AGENCIES ARE LOBBYING THE
FEDERAL GOVERNMENT FOR EXTENDED
POWERS, WARNING THAT CANADA'S
SECURITY LAGS IN THE DIGITAL ERA.
JOINING US NOW ON HOW TO FIND
THE RIGHT BALANCE BETWEEN
PRIVACY AND EFFECTIVE POLICING:
SCOTT TOD, DEPUTY CHIEF OF
POLICE, NORTH BAY POLICE SERVICE...

Scott is in his late fifties, with short side-parted brown hair and a moustache. He's wearing a police officer uniform.

Steve continues SUKANYA PILLAY, EXECUTIVE
DIRECTOR and GENERAL COUNSEL,
CANADIAN CIVIL LIBERTIES ASSOCIATION...

Sukanya is in her forties, with long straight black hair. She's wearing a black blazer.

Steve continues CHRISTOPHER PARSONS, MANAGING
DIRECTOR, THE TELECOM
TRANSPARENCY PROJECT AT THE
UNIVERSITY OF TORONTO'S CITIZEN LAB...

Christopher is in his thirties, clean-shaven, with receding blond hair. He's wearing rounded glasses, a gray suit, and a blue shirt.

Steve continues AND ROBERT CRIBB, INVESTIGATIVE
REPORTER AT THE TORONTO STAR...

Robert is in his fifties, clean-shaven, with short wavy gray hair. He's wearing a blue suit, white shirt, and spotted blue tie.

Steve continues WE'RE HAPPY TO WELCOME ALL OF
YOU TO OUR TABLE HERE AT TVO TONIGHT.
GET COMFORTABLE, EVERYBODY.
I'M GOING TO READ A COUPLE OF
THINGS FIRST JUST TO SET UP OUR
DISCUSSION.
SHELDON, IF YOU WOULD, LET'S
BRING THESE UP.
THIS IS FROM OUR SECURITY OUR
RIGHTS, NATIONAL SECURITY GREEN PAPER...

A quote appears on screen, under the title "Rights and expectations." The quote reads "We treasure our privacy, and rightly so, but also expect law enforcement and national security investigators to be as effective in keeping us safe and secure in the digital world as they are in the physical world.
But our laws on how information can be properly collected and then used in court as evidence were mostly written before the rapid pace of new technology became a consideration."
Quoted from the Government of Canada, "Our security, our rights: National Security Green Paper, 2016."

Steve says LET'S FOLLOW THAT UP
WITH ONE MORE HERE.
THIS IS FROM THE AFOREMENTIONED
MR. CRIBB, WRITING IN THE
TORONTO STAR LAST MONTH...

Another quote appears on screen, under the title "Losing it." The quote reads "'I can safely say that there's criminal activity going on every day that is facilitated by technology that we aren't acting on,' RCMP Commissioner Bob Paulson told the Toronto Star and CBC News in an exclusive interview. 'We're losing our ability, if we haven't lost it entirely, to bring the traditional investigative response to technologically facilitated crime because of the misunderstanding, in my view, of the privacy threat.'"
Quoted from Robert Cribb, Toronto Star. November 16, 2016.

Steve says THOSE ESSENTIALLY
ARE BOTH SIDES GENERALLY
SPEAKING OF THE ARGUMENT.
LET'S GET INTO THIS.
DEPUTY CHIEF, LET'S START WITH YOU.
WHAT ARE THE POLICE LOOKING FOR
IN TERMS OF CHANGES TO
LEGISLATION THAT YOU THINK YOU
NEED TO DO YOUR JOBS BETTER?

The caption changes to "Scott Tod. North Bay Police Service."
Then, it changes again to "Understanding the misunderstanding."

Scott says PRIMARILY WE'RE
LOOKING FOR FOUR THINGS.
THIS PAST AUGUST THE CANADIAN
ASSOCIATION OF CHIEFS OF POLICE
PASSED A RESOLUTION THAT WAS
LOOKING AT CONSIDERATION BE
GIVEN IN RESOLVING THE MATTER IN
REGARDS ENCRYPTION AND ACCESS TO
MOBILE DEVICES OR OTHER DEVICES
THAT ARE PASSWORD LOCKED.
WE ASKED FOR SOME SORT OF
REASONABLE LAW THAT WOULD ALLOW
LAW ENFORCEMENT, MORE
SPECIFICALLY POLICE OFFICERS, TO
HAVE ACCESS TO ENCRYPTED DEVICES
OR DEVICES THAT ARE PASSWORD
PROTECTED SO WE CAN CONTINUE ON
IN THE INVESTIGATION AND COLLECT
FURTHER EVIDENCE.
THAT WAS THE FIRST ONE.
THE SECOND WAS TO HAVE BASIC
SUBSCRIBER INFORMATION.

Steve says TRANSLATION, PLEASE?

Scott says BSI IS THE NAME
OF AN INDIVIDUAL SUBSCRIBER, THE
IP ADDRESS, PERHAPS AN eMAIL
ADDRESS, AND A LOCATION OF WHERE
THAT IP ADDRESS LANDS IN REGARDS
TO DROP.
THE OTHER THING WE LOOK AT IS
DATA RETENTION STANDARDS AND
REGULATION OR STANDARDS SO THAT
TELECOM COMPANIES AND ISP
COMPANIES ARE REQUIRED TO STORE
DATA FOR A SPECIFIC PERIOD OF
TIME, AND IT COULD HAPPEN
THROUGH REGULATION OR IT COULD
HAPPEN THROUGH SOME OTHER TYPE
OF ORDER.
AND THE LAST ONE WE'RE LOOKING
AT IS IN REGARDS TO INTERCEPTION
CAPABILITIES.
THAT'S THE ABILITY FOR LAW
ENFORCEMENT, WITH WARRANT,
JUDICIAL WARRANT, TO INTERCEPT
IN A TANGIBLE FASHION
INFORMATION THAT HAS MEANING TO
US, BECAUSE RIGHT NOW WE DON'T.

Steve says WHICH NOW YOU DON'T
HAVE.
THOSE ARE THE FOUR POINTS.
ROBERT, AS YOU LOOK AT THOSE AND
THROUGH YOUR COVERAGE, ANY
CONTROVERSIAL IN THAT?

The caption changes to "Robert Cribb. Toronto Star."

Robert says EVERYTHING
ABOUT THAT IS CONTROVERSIAL,
YEAH.
THIS IS AN INCREDIBLY POLARIZED
DEBATE.
WE WENT INTO DETAIL ON THOSE
FOUR ISSUES.
CANADIANS FEEL VERY STRONGLY ON
ONE SIDE OR THE OTHER.
WE ARE REALLY IN OUR INFANCY, IN
OUR UNDERSTANDING OF THIS
COUNTRY OF THIS.
I DON'T THINK THERE'S A LOT OF
PUBLIC LITERACY AROUND THESE
ISSUES.
I DON'T THINK WE'VE AIRED IT OUT
IN PART BECAUSE WE HAVEN'T HAD
THE INFORMATION ON THE TABLE.
BUT THERE IS VERY STRONG
DIVISION BETWEEN THE POLICE
POSITION AND THAT OF CIVIL
LIBERTARIANS, AND I THINK IT'S
UNFORTUNATE, ACTUALLY.
I THINK THAT, IN FACT, IT'S A
MUCH MORE TEXTURED, SUBTLE
DEBATE, IT'S GRAY, IT'S FILLED
WITH GRAY, AND YET THAT'S NOT
BEEN TRANSLATED I DON'T THINK TO
DATE.
IT'S BEEN VERY A BLACK HAT-WHITE HAT DEBATE?

Steve says WHO IS WEARING WHICH?

Robert says IT DEPENDS ON
YOUR PERSPECTIVE.
THOSE WHO HAVE A PRIVACY BENT
AND GREAT CONCERNS ABOUT PRIVACY
IN THIS COUNTRY THINK THE POLICE
ARE TRYING FOR A POWER GRAB,
THEY'RE TRYING TO ARREST POWERS
THAT WILL ALLOW THEM TO SURVEIL
US ON A MASSIVE LEVEL, AND THE
POLICE, BOB PAULSON, THINK
THEY'RE BEING DEMONIZED BY THE
PRIVACY ADVOCATES THAT DON'T
UNDERSTAND THE TANGIBLE NEEDS OF
POLICE TO SOLVE CRIMES INVOLVING
SOMETIMES HORRIFIC CASES WHERE
THERE ARE REAL VICTIMS.

Steve says LET ME PUT ONE OF
MR. PAULSON'S COMMENTS TO
SUKANYA.
HE SAYS CANADIANS MISUNDERSTAND
THE PRIVACY THREAT.

The caption changes to "Sukanya Pillay. Canadian Civil Liberties Association."

Sukanya says I RESPECTFULLY DISAGREE.
I THINK CANADIANS UNDERSTAND THE
PRIVACY THREAT AND I THINK
CANADIANS ARE CONCERNED... LET
ME SAY THAT CANADIANS DEFINITELY
WANT TO ASSIST THE POLICE IN
THEIR WORK, AND I THINK WE
UNDERSTAND THAT THEY NEED TO
HAVE INFORMATION AND THEY NEED
TO HAVE ACCESS.
OUR CONCERN BASED ON CANADIANS
WHO SPEAK TO US AND ALSO THE
LAW, IS THAT THAT ACCESS HAS TO
BE GROUNDED WITHIN A WIDER
CONTEXT.
WE HAVE TO LOOK AT WHAT PRIVACY
ACTUALLY DOES FOR US AND WHEN
WE'RE WILLING TO ALLOW
INFRINGEMENTS OF THAT PRIVACY OR
LEGITIMATE INFRINGEMENTS.
AND I THINK THAT THAT'S BEING
LOST.
AND I THINK THAT WHEN THE DEBATE
IS PRESENTED AS BLACK OR WHITE,
WE RUN THE RISK OF LOSING WHAT'S
REALLY GOING ON IN THE MIDDLE
AND WHY WE HAVE PRIVACY IN THE
FIRST PLACE.

Steve says IS THERE A WAY TO
MEET IN THE MIDDLE ON THIS, CHRIS?

The caption changes to "Christopher Parsons. Citizen Lab."

Christopher says IN
SOME AREAS THERE CERTAINLY ARE.
SO PERHAPS NOT ALL THE WAY, SO I
THINK WARRANTLESS ACCESS TO DATA
IS ONE AREA WHERE THERE'S BEEN
CONTENTION, AND THE SUPREME
COURT OF CANADA HAS FALLEN OUT
AND SAID ACTUALLY THAT'S A NO-GO
SPACE.
BUT LEGISLATION CAN BE PROPOSED,
AND I THINK THAT BOTH LAW
ENFORCEMENT AND CIVIL LIBERTIES
GROUPS AND ACADEMICS SUCH AS
MYSELF CAN WORK TOWARDS.
SETTING THE STANDARD SO THERE IS
OVERSIGHT MAKES SENSE.
IN THE PAST POLICE HAVE AND DO
GET ACCESS TO SUBSCRIBER DATA BY
USING WARRANTING POWER.
NOT EXCLUSIVELY, BUT THEY HAVE.
WE NEED TO UNPACK THAT DEBATE TO
UNDERSTAND WHAT HAS CHANGED.
WHY WERE WARRANTS USED AND AT
LEAST 50 PERCENT OF THE TIME IN
THE PAST WITH SOME AGENCIES.
WE'VE FALLEN OFF THE CLIFF NOW.
THAT'S WHERE WE'RE HAVING A
DEBATE WITH LAW ENFORCEMENT,
UNDERSTANDING THE PAST, THE
PRESENT, AND WHERE TO GO FORWARD
IS NEED TODAY HAVE THAT ROBUST
DISCUSSION.

Steve says LET'S UNDERSTAND
THAT A LITTLE BETTER.
CAN YOU GIVE US A FOR INSTANCE
OF WHERE YOU WOULD BE WORKING ON
A CASE WHERE YOU CURRENTLY
BELIEVE YOU DON'T HAVE ADEQUATE
POWERS TO DO YOUR JOB PROPERLY?

The caption changes to "Assessing the Canadian approach."

Scott says IT COULD BE AS
SIMPLE AS A COMPLAINT.
A COMPLAINT THAT IS PROVIDED TO
A PATROL OFFICER ABOUT
INFORMATION THAT SOMEONE HAS
BEEN ATTACKED OVER THE INTERNET
OR THROUGH THEIR CELL MOBILE
DEVICE.
IT COULD BE SOME TYPE OF RANSOM
WARE OR A THREAT OF SOME SORT,
EXTORTION.
AND THAT THE ONLY INFORMATION
THAT WE'RE ABLE TO GET AT THAT
TIME IS AN IP ADDRESS.
THAT WOULD LEAD US BACK TO GO TO
WHERE WE'D LIKE TO SEE THE
INDIVIDUAL.

Steve says IN YOUR VIEW, THAT'S NOT...

Scott says IT'S A STARTING
POINT.
THAT'S ALL IT IS FOR US.
IT'S NOT ENOUGH.

Steve says NOT ENOUGH TO HELP
YOU DO WHAT?

Scott says IDENTIFY A
PERSON WHO HAS COMMITTED A
CRIMINAL ACT.
THAT IS THE THRESHOLD FOR
EVIDENCE IN A COURT.
WE CAN'T PUT A DEVICE OR SOME
TYPE OF OTHER INSTRUMENT,
TECHNICAL INSTRUMENT, ON THE
STAND.
WE HAVE TO PUT A HUMAN BEING ON
THE STAND.
WE HAVE TO FACE THE PROSECUTION
AND WHAT THE CHARGES ARE.

Steve says WHAT'S YOUR CONCERN
ABOUT GIVING THE DEPUTY CHIEF,
WHO SEEMS LIKE A FINE FELLA,
ADDITIONAL POWERS IN ORDER TO
HELP HIM DO HIS JOB BETTER?

Sukanya says WE DON'T
START FROM THE STANDPOINT THAT
THE POLICE ARE NECESSARILY OUT
TO GRAB AS MUCH INFORMATION AS
THEY CAN, BUT WE DO VERY MUCH
STUDY HISTORY AND WE KNOW THAT
WHEN POWERS HAVE BEEN GIVEN TO
PEOPLE, EVEN WELL-MEANING AND
EARNEST POLICE OFFICER MAY GO
BEYOND WHAT IS LEGITIMATE.
THE OTHER THING THAT WE'RE
CONCERNED ABOUT.
IN OTHER WORDS, THEY MAY GRAB
MORE INFORMATION THAN IS
ACTUALLY NEEDED, AND THEY MAY
ALSO HAVE ACCESS TO VERY
PERSONAL IDENTIFYING INFORMATION
ON THE HABITS, ON THE SITES THAT
ARE VISITED, ET CETERA, OF
INNOCENT LAW-ABIDING CANADIANS,
AND THAT REALLY CONCERNS US.
BECAUSE ONCE YOU START GOING
DOWN THAT PATH, YOU'RE REALLY
GOING DOWN A PATH OF ALTERING
WHAT IS OTHERWISE A FREE AND
DEMOCRATIC SOCIETY.
ANY TIME THAT A STATE FEELS THAT
IT HAS TO KNOW ALL THE TIME
EVERYTHING THAT'S GOING ON, YOU
NO LONGER HAVE A FREE AND
DEMOCRATIC SOCIETY.
WE ONLY NEED TO THINK TO THE
COLD WAR OR EVEN TO OTHER
COUNTRIES IN THE WORLD RIGHT NOW
WHERE THERE'S THAT ALL-THE-TIME
SURVEILLANCE.
WE DON'T WANT TO BE TREATED LIKE
SUSPECTS.

Steve says ALL RIGHT.
ROBERT, WHAT ABOUT... WELL,
EVERYBODY IS CONCERNED ABOUT
TERRORISM, RIGHT?
WHAT IF THE CHIEF THINKS HE HAS
A TIP ON A POTENTIAL TERRORIST
ACTIVITY THAT MAY HAPPEN
SOMEWHERE IN NORTHERN ONTARIO
AND HE NEEDS ADDITIONAL POWER IN
ORDER TO ROOT OUT THE POTENTIAL
SUSPECT.
WHO DOESN'T WANT TO GIVE HIM
THAT ADDITIONAL POWER?

Robert says IT'S REALLY
INTERESTING.
WE LOOKED AT TEN CASES, WE
NEGOTIATED ACCESS TO TEN CASES,
MANY WERE NATIONAL SECURITY
CASES WHERE THE POLICE ALLEGE
THAT THEY HIT A ROADBLOCK,
EFFECTIVELY A DIGITAL ROADBLOCK,
WITH ARE THEY WERE UNABLE TO...
WHERE THEY WERE UNABLE TO PURSUE
PERPETRATORS OF ALLEGED CRIMES
BECAUSE OF ENCRYPTION OR BECAUSE
THEY COULDN'T GET ACCESS TO
VITAL DIGITAL INFORMATION, IT
HAD BEEN PURGED PERHAPS IN SOME
CASES BY IPSs.
SO I'VE BEEN WORKING ON THIS FOR
TWO YEARS.
I HAVE COME TO BELIEVE THAT THIS
IS NOT A FICTION THAT THE POLICE
ARE MAKING UP.
I HAVE COME TO BELIEVE THROUGH
SITTING IN COUNTLESS MEETINGS
AND VIEWING COUNTLESS DOCUMENTS
THAT THIS IS REAL.

Steve says THEY HAVE A CASE.

Robert says THEY HAVE A CASE.
I DO BELIEVE THAT.
THERE ARE CASES WE HAVE LOOKED
AT VERY CAREFULLY, SOME ARE
TERRIFYING CASES, CHILD ABUSE
CASES WHERE THERE IS EVIDENCE
SITTING ON PHONES THEY CAN'T GET
ACCESS TO.
I REALLY DO THINK THERE HAS TO
BE SOME THOUGHTFUL CONSIDERATION
TO THESE CONCERNS, THERE'S NO
QUESTION ABOUT IT.
I'M STRADDLING HERE BECAUSE I'M
A JOURNALIST BECAUSE I HAVE
GRAVE CONCERNS ABOUT THE ABUSE
OF POWER WE'VE BEEN SEEING.
IT HAPPENED RECENTLY IN Québec.
THE QUESTION IS, WHAT DO WE DO
ABOUT THAT AND WHERE IS THAT
MIDDLE GROUND?
I THINK THAT'S WHAT WE HAVEN'T
FIGURED OUT, WE'RE NOT CLOSE TO
FIGURING THAT OUT BECAUSE WE
HAVEN'T HAD THE PUBLIC DEBATE.
WHAT'S REALLY INTERESTING IS,
HERE WE ARE IN THE PROCESS OF
PUBLIC CONSULTATIONS, WE'RE
MOVING VERY QUICKLY TOWARDS SOME
LEGISLATIVE REFORM, AND I JUST
DON'T THINK WE'RE READY.

Steve says DO YOU HAVE ANY
DIFFICULTY GIVING THE POLICE
THIS ADDITIONAL POWER THEY WANT
IN ORDER TO ROOT OUT CHILD
ABUSERS AND POTENTIAL TERRORISTS
AND THAT KIND OF THING?

Christopher says YEAH.

Steve says YOU DO?

Christopher says NOT
THAT I DON'T THINK THOSE PEOPLE
SHOULD BE STOPPED, BECAUSE THEY
SHOULD.
SOME OF THE PROPOSALS ARE NOT
PRIVACY ISSUES.
THEY ARE.
BUT THAT'S THE SECONDARY
CONSEQUENCE.
THE PRIMARY CONSEQUENCE IS
SECURITY.
IT'S SECURITY VERSUS INSECURITY
IN THIS DISCUSSION.
TO USE THE EXAMPLE OF
ENCRYPTION.
SO TO PROVIDE POLICE ACCESS TO
ENCRYPTED DEVICES, THERE ARE
SEVERAL WAYS YOU CAN GO DOWN
THAT ROAD.
ONE WOULD BE COMPELLING
INDIVIDUALS TO DISCLOSE THEIR
PASSWORDS OR ENCRYPTION KEYS,
AND SUKANYA MIGHT BE ABLE TO
SPEAK TO THAT, THE POLICE
COMMISSIONER HAS SAID IS
PROBABLY A NO-GO.
WHAT IS THE OTHER MAJOR WAY TO
GO THROUGH THAT.
YOU CAN SET UP BACK DOORS OR
WAYS THAT TECHNOLOGY COMPANIES
WOULD HAVE TO DESIGN THEIR
SECURITY SYSTEMS TO HAVE A WAY
FOR POLICE TO GAIN ACCESS INTO
IT.
SADLY, SECURITY ENGINEERS ARE
HAVING A DEVIL OF A TIME RIGHT
NOW TRYING TO MAINTAIN SECURITY
WHERE THEY AREN'T BUILDING BACK
DOORS IN.
WE KNOW WHEN BACK DOORS HAVE
BEEN BUILT INTO SECURITY, SO
THIS HAS BEEN DONE BY THE
CANADIAN GOVERNMENT IN THE PAST
AND IT'S HAPPENED IN OTHER
INSTANCES, HACKERS GET THROUGH
IT VERY QUICKLY.
AND THAT'S ISOLATED SOURCE
SITUATIONS.
WHEN WE TALK ABOUT ENABLING
ACCESS TO HUGE VOLUMES OF
COMMUNICATION WITH THOUSANDS OR
TENS OF THOUSANDS OR MILLIONS OF
PERSONS' COMMUNICATIONS, IT
STARTS TO UNRAVEL THE PAST
DECADE'S WORTH OF SECURITY.
YES, IT MIGHT MEAN WE CAN CATCH
CERTAIN SERIOUS CRIMINALS, WHICH
WOULD BE A GOOD THING FOR
SOCIETY, IT WOULD ALSO RENDER
SOCIETY MORE BROADLY VULNERABLE
TO EQUAL ATTACKS FROM OTHER
STATE ACTORS, FROM CRIMINALS,
FROM THE VERY PEOPLE WE'RE
TRYING TO PROTECT OURSELVES
AGAINST.
SO THAT'S A PART OF THE DEBATE
THAT NO ONE KNOWS HOW TO HAVE IT
BECAUSE SO FAR THE SMARTEST
PEOPLE THAT ARE BUILDING THESE
TOOLS HAVE NO IDEA HOW YOU COULD
POSSIBLY BUILD THOSE BACK DOORS IN.

Steve says HELP US, DEPUTY
CHIEF, UNDERSTAND HOW WE CAN
GIVE YOU MORE POWER TO DO WHAT
YOU FEEL YOU NEED TO DO WHILE AT
THE SAME TIME NOT CASTING THE
NET SO WIDE SO THAT WE ENABLE A
LOT OF POTENTIAL ACTIVITIES THAT
WE DON'T WANT YOU DOING?

The caption changes to "Scott Tod, @DeputyTod"

Scott says ONE IS LAW
ENFORCEMENT AND POLICING NEEDS
TO DO A BETTER JOB AT TALKING
ABOUT WHAT IT IS WE DO AND WHAT
WE DON'T DO.
WE HAVEN'T BEEN GOOD AT TALKING
ABOUT WHAT WE DON'T DO.
IN POLICING, TO MY KNOWLEDGE,
AND I'VE BEEN AT THIS 35 YEARS,
A NUMBER OF ROLES IN POLICING,
WE DON'T HAVE A MASS
SURVEILLANCE PROGRAM.
THE CONCEPT OF THAT BEING RUN BY
POLICE ACROSS CANADA IS TO ME
LUDICROUS IN THE FACT THAT WE
DON'T HAVE A BUDGET AND WE DON'T
HAVE PEOPLE RIGHT NOW TO KEEP UP
WITH THE INCIDENCE AND THE
REPORTED INCIDENTS THAT COME
THROUGH OUR DOOR RIGHT NOW THAT
REQUIRE SOME TYPE OF ELECTRONIC
CRIME RESPONSE BY OUR
TECHNICIANS.
TO DO MORE IS GOING TO BE
CHALLENGING.
TO SAY THAT WE'RE GOING TO HAVE
THESE UNLIMITED POWERS AND THAT
WE'RE GOING TO BE CREATING A
DIFFICULT PROBLEM FOR MANY
INDIVIDUALS IN SOCIETY, SIMPLY,
WE DON'T HAVE CAPACITY RIGHT NOW
TO EVEN DEAL WITH WHAT'S COMING
THROUGH THE DOOR RIGHT NOW.
SO HOW WE WOULD BE ATTACKING
SOCIETY OTHERWISE, I'M NOT SURE.
BUT WHAT WE'RE LOOKING FOR IS
REASONABLENESS.
THE WHOLE ASPECT IS, IN THE
ABSENCE OF A LAW, AND THAT'S ONE
OF THE DECISIONS SPENCER TALKED
ABOUT, IN THE ABSENCE OF LAW,
SPENCER TALKED ABOUT POLICE
OFFICERS NEEDING A WARRANT, AND
THEY WERE AT THE TIME COLLECTING
INFORMATION THAT I CALL
LIFESTYLE INFORMATION, IT WAS
BEYOND WHAT THE BASIC SUBSCRIBER
INFORMATION IS.
I THINK A REASONABLE PROCEDURE,
LAW, REGULATION, WHATEVER IT
TURNS INTO BEING, SAYS WE CAN
ONLY COLLECT WARRANTLESS ON BSI,
THE NAME OF THE SUBSCRIBER, THE
IP ADDRESS, PERHAPS AN eMAIL
ADDRESS, AND THE PHYSICAL
ADDRESS AND NAME.
THAT'S BASICALLY ALL WE NEED AT
THAT LEVEL TO START AN
INVESTIGATION, OR TO FURTHER AN
INVESTIGATION SO THAT WE CAN GO
TO WARRANT POWERS.
ON THE ENCRYPTION SIDE, IT'S
FRUSTRATING, VERY FRUSTRATING
WITH VICTIMS.
WHEN WE GET TO THE END WHERE WE
HAVE A DEVICE WE NEED TO GO INTO
AND TO ACCESS INFORMATION OR
IMAGES IN A TEXT MESSAGE AND WE
CAN'T DO IT THROUGH THE
INTERCEPTION OF THE MESSAGE BUT
IT'S PERHAPS AN EXTORTION,
TEENAGE EXTORTION BEING DONE.
THE FACT IS THAT WE HAVE TO GET
INTO THE SUSPECT'S PHONE TO
PROVE THAT THE SUSPECT WAS AT
THAT TIME SENDING THOSE
MESSAGES.
WE HAVE THE VICTIM'S PHONE, BUT
WHEN WE CAN'T GET INTO IT, AND
WE HAVE WRITTEN OFF
INVESTIGATIONS IN THOSE CASES
WHERE WE CAN'T ACCESS THE
INFORMATION ON THE SUSPECT'S PHONE.

The caption changes to "Connect with us: @theagenda, TVO.org, YouTube, Facebook, Instagram."

Steve says THEREFORE, GUILTY
PEOPLE HAVE GONE FREE, IN YOUR VIEW?

Scott says I WOULDN'T SAY
THEY WERE GUILTY AT THAT TIME
BUT STRONG SUSPECTS IN AN
INVESTIGATION.

Steve says I WANT TO GO TO SUKANYA.
I GUESS THE SPENCER DECISION SET
THE TABLE FOR THE PRIVACY RIGHTS
WE CURRENTLY ENJOY AS FAR AS THE
COURTS HAVE INTERPRETED THEM.
IS THAT FAIR TO SAY?
WHERE ARE WE TODAY IN TERMS OF
WHAT THE COURTS SAY WE'RE
ENTITLED TO AND NOT?

The caption changes to "Sukanya Pillay, @isukanya"

Sukanya says I THINK THE
SPENCER DECISION WAS VERY
IMPORTANT BECAUSE IT CLARIFIED
FOR US ONCE AND FOR ALL THAT ON
THE INTERNET, USERS HAVE A
REASONABLE EXPECTATION TO
PRIVACY, AND THEY HAVE A RIGHT
TO ANONYMITY, AND THAT'S
IMPORTANT WHEN WE'RE TALKING
ABOUT DIGITAL INFORMATION.
THE SECOND THING WAS THAT WHEN
POLICE WANT TO ACCESS BASIC
SUBSCRIBER INFORMATION,
ET CETERA, THEY NEED TO GET A
WARRANT OR THEY NEED TO GET A
PRODUCTION ORDER.
IN OTHER WORDS, THEY NEED TO
HAVE JUDICIAL AUTHORIZATION TO
ACCESS IT.
SO THAT WAS VERY IMPORTANT.
AND THE DISCUSSION THAT WE'RE
HAVING TODAY DOES WORRY PRIVACY
ADVOCATES, LIKE MYSELF OR
PERHAPS CHRIS, BECAUSE THIS VERY
IMPORTANT DECISION THAT SETS
LIMITS MIGHT BE OVERTURNED, AND
THE VERY ISSUES THAT BOTH
MR. TOD AND OTHERS HAVE BROUGHT
UP, WE CAN ARGUE THEM ALSO THE
OTHER WAY.
SO IT'S IMPORTANT TO LOOK AT THE
CONTEXT AND IT'S ALSO IMPORTANT,
AS CHRIS POINTED OUT, TO LOOK AT
HOW ENCRYPTION ACTUALLY HELPS US
AS A SOCIETY.
LIKE, WE DON'T WANT TO SWAP ONE
SET OF CRIMES FOR ANOTHER.

Steve says I WOULD LIKE TO PLAY
A LITTLE PIECE OF CLIP RIGHT
NOW.
ROBERT, THIS IS PART OF YOUR
SERIES WE'RE GOING TO PLAY HERE.
YOU SPOKE TO THE R.C.M.P.
COMMISSIONER, PAULSON, AND YOU
ASKED HIM THE FOLLOWING QUESTION.
ROLL IT, PLEASE.

A clip plays on screen. In the clip, Robert interviews Paulson in his office. Paulson is in his late fifties, clean-shaven and bald.

Robert says ARE WE MORE OR LESS SAFE AS
CANADIANS TODAY AS A RESULT OF
THESE TECHNOLOGICAL ADVANCES, IN
YOUR VIEW?

Paulson says THAT'S A GOOD QUESTION.
I THINK WE'RE MORE SAFE.
I THINK WE'RE MORE SAFE AS A
RESULT OF A NUMBER OF OTHER
THINGS OTHER THAN TECHNOLOGICAL
SHIFTS.
I THINK THE RISK IS THAT IT'S
PRECARIOUS.
OUR SAFETY AND SECURITY IS
PRECARIOUS.
I NEED TO NOT MAKE THE CASE THAT
THE SKY IS FALLING, BECAUSE
THAT'S NOT MY CASE.
I'M SAYING THAT THE SKY IS
WOBBLING AND THAT THERE'S A
STORM OVER THERE.
HEY, LOOK, THERE'S A BIG STORM.
CAN YOU TELL WHICH WAY IT'S COMING?
I THINK IT'S COMING THIS WAY.

The clip ends.

The caption changes to "Protecting press privacy."

Steve says THE OBVIOUS QUESTION
OUT OF THIS CLIP IS: WHAT ARE
THOSE SWORDS DOING IN THE
BACKGROUND?
NEVER MIND THAT.
AS A REPORTER, DO YOU FEEL MORE
SAFE AS A RESULT OF THE DIGITAL
TOOLS THAT YOU HAVE ACCESS TO NOW?

The caption changes to "Robert Cribb, @thecribby"

Robert says LISTEN, LIKE
EVERY QUESTION ON THIS ISSUE,
IT'S TEXTURED.
LISTEN, AS A JOURNALIST, IN THE
AFTERMATH OF RECENT SURVEYS
ABOUT INVESTIGATIONS OF
REPORTERS IN Québec WHO BROUGHT
VITAL ISSUES OF PUBLIC INTEREST
TO LIGHT AND AFFECTED PUBLIC
POLICY, I THINK IT'S TERRIFYING
THAT THE WORK OF JOURNALISTS
COULD BE AND THEIR LOCATION AND
THE WORK THAT THEY DO AND THE
SOURCES THAT THEY SPEAK WITH
COULD BE SURVEILLED IN THAT WAY.

Steve says WHO WAS SURVEILLING
THEM?

Robert says BOTH LOCAL
POLICE AND PROVINCIAL POLICE.

Steve says WHAT WERE THEY
TRYING TO FIND OUT?

Robert says THEIR SOURCES.
WHO THEY'RE MEETING WITH, WHEN, HOW.

Steve says WHAT DID THEY FIND OUT?

Robert says WE DON'T KNOW EXACTLY.

Steve says THEY HAVEN'T FESSED UP.

Robert says NO.

Steve says CAN YOU SEE WHY
GIVING YOU EXTRA POWER WOULD
MAKE SOME PEOPLE SKITTISH?

Scott says ABSOLUTELY.
PROBABLY THE ONLY PANELIST WHO
HAS SWORN AN OATH TO UPHOLD.
WE LOOK AT OUR FOUNDATIONS AND
OUR PRINCIPLES OF POLICING, AND
ONE OF MINE IS, THE CHARTER OF
RIGHTS AND FREEDOMS AND
ENSHRINED THOSE RIGHTS FOR THE
CITIZENS OF ONTARIO.
WE DO TAKE THIS SERIOUSLY.
WE HAVE BEEN LOOKING TO HAVE
THIS CONVERSATION FOR THE LAST
THREE OR FOUR YEARS SINCE I'VE
BEEN AROUND C-13 AND C-30, AND
IT'S NICE TO HAVE THE DISCUSSION
NOW IN OPEN FORUMS AND WITH
ESTEEMED GUESTS IN OUR
COMMUNITIES THAT WE ARE NOW
HAVING THIS DISCUSSION.
I UNDERSTAND IT QUITE WELL.

Steve says WHAT DO YOU THINK
THE COPS IN Québec WERE
THINKING?

Scott says I COULDN'T
COMMENT ON THE Québec SITUATION,
THE INFORMATION THAT GOES ON
THERE.
AS I SAID, THE CHARTER OF RIGHTS
AND FREEDOMS TO US ARE ONE OF
OUR FOUNDATIONAL PRINCIPLES.
I SEE THE FREEDOM OF PRESS
RELATED TO THAT.

Robert says IS THAT
HAPPENING IN ONTARIO, SCOTT?

Scott says NOT TO MY
KNOWLEDGE, NO.

Robert says I'M NOT UNDER
SURVEILLANCE?

Scott says YOU'RE NOT.

Steve says YOU'RE A LAWYER.
DO YOU THINK BECAUSE Québec HAS
NOT SIGNED THE CONSTITUTION THAT
SOMEHOW THE POLICE FELT THEY
DIDN'T HAVE TO FOLLOW THE CHARTER?

Sukanya says THAT WOULD
JUST BE SPECULATION.
I CAN TELL YOU WE HAVE HAD
INSTANCES OF THE COMMUNICATIONS
SECURITY ESTABLISHMENT, THE CSE,
PICKING UP THE WI-FI PASSWORDS
AND INFORMATION IN AN AIRPORT IN
BRITISH COLUMBIA.
SO, YOU KNOW...
WE'VE HAD OTHER EXAMPLES OF THE
POLICE REQUESTING OR RECEIVING
SUBSCRIBER INFORMATION FROM
TELUS.
SO IT'S NOT THAT THESE ARE
ONE-OFFS.
THIS IS SOMETHING THAT HAPPENED.
AND I'M SURE THAT SCOTT IS
ABSOLUTELY SINCERE AND UPHOLDS
HIS OATH.
BUT THERE ARE POLICE, THERE ARE
DEPARTMENTS WHO BELIEVE, OKAY,
WE NEED TO HAVE THIS INFORMATION
AND WE'RE TAKING IT.
AND THE PROBLEM IS THAT THE NET
IS HUGE.
SINCE WE'RE TALKING ABOUT THE
CHARTER, WHICH, AS A LAWYER, WE
ALSO HAVE TO TAKE OATHS, THE
CHARTER ACTUALLY HAS A REALLY
FANTASTIC FORMULA FOR FIGURING
OUT THESE PROBLEMS.
SECTION 8, THE RIGHT AGAINST
UNREASONABLE SEARCH AND SEIZURE,
THE COURT HAS FOUND THAT WITHIN
THAT RIGHT LIES THE RIGHT TO
PRIVACY, WHICH LIES AT THE HEART
OF A DEMOCRACY.
PRIVACY IS IMPORTANT FOR SO MANY
REASONS, I'M HAPPY TO ITERATE
THEM, BUT MORE IMPORTANTLY, IF
WE ARE GOING TO ALLOW A SEARCH
OR REASONABLE INVASION OF
PRIVACY, WE HAVE A FORMULA IN
SECTION 1 OF THE CHARTER.
WHAT'S IMPORTANT THERE IS IT
MUST BE NECESSARY AND IT MUST BE
PROPORTIONAL.
THAT'S WHAT OUR CONCERNS ARE.
IS THAT MUCH OF THE SURVEILLANCE
THAT GOES ON IS NOT NECESSARY
AND NOT PROPORTIONAL.
SECONDLY, THE CONCERN THAT WE
HAVE WITH THE NEW POWERS THAT
ARE REQUESTED IS THAT, SURE,
THERE ARE ROADBLOCKS.
BUT WE, AS A FREE AND DEMOCRATIC
SOCIETY, HAVE UNDERSTOOD THAT
SOME ROADBLOCKS ARE NECESSARY
AND CAN BE GOT AROUND.
FOR THE SAME REASON, IF THERE'S
A CRIME, WE DON'T ALLOW THE
POLICE TO COME INTO EVERYBODY'S
HOUSE AND SEARCH WITHOUT A
WARRANT.
IT'S BECAUSE WE UNDERSTAND THAT
THE STATE CAN COME UP TO HERE.
AFTER THAT POINT, THEY HAVE TO
GET A WARRANT.
AND IT SHOULD APPLY IN THE
DIGITAL WORLD AS WELL.

Steve says LET ME PLAY DEVIL'S ADVOCATE.
SHOULD THE MEDIA BE IMMUNE FROM
SURVEILLANCE IF POLICE ARE
TRYING TO INVESTIGATE A SERIOUS CRIME?

Sukanya says IT COMES
DOWN TO, DO THEY HAVE A WARRANT?
IF WE'RE TALKING ABOUT THE
Québec EXAMPLE, IN MY OPINION,
BASED ON THE FACTS THAT HAVE
BEEN REPORTED... I DON'T KNOW
EVERYTHING... BUT BASED ON THE
FACTS THAT HAVE BEEN REPORTED,
IF THE POLICE WERE SURVEILLING A
JOURNALIST IN ORDER TO FIND OUT
WHO THAT SOURCE WAS AND IT'S
ONLY COMPOUNDED, IN MY MIND, BY
THE FACT THAT THEY SUSPECTED THE
SOURCES FROM AMONG THEIR OWN
FORCE OR MEMBERS, THAT'S TO ME
ABUSIVE AND CONCERNING.
AND... SORRY.
JOURNALISTS PLAY A VERY VALUABLE
ROLE IN OUR SOCIETY.
FREEDOM OF THE PRESS IS
IMPORTANT.
AND THEY HAVE TO BE ABLE TO HAVE
ANONYMITY SURROUNDING THEIR
SOURCES.
AND SO THAT COMPROMISED AS WELL.

Steve says I APPRECIATE THAT.
WE WATCHED AN ELECTION CAMPAIGN
SOUTH OF THE BORDER WHERE ONE
CANDIDATE, I WON'T MENTION HIS
NAME, BUT HE WON, AND HE DID SO
IN PART BY DEMONIZING MEDIA WHO
HE THOUGHT HAD COMPLETELY MISSED
THE BOAT AND WERE BIASED AND NOT
WORTHY OF THE CONSTITUTIONAL
PROTECTIONS THAT THEY ENJOY DOWN
THERE, WHICH...

Robert says I'VE GOT TO
SAY, THOUGH, STEVE.

Steve says GO AHEAD.

Robert says I'M NOT
EXPECTING ANYONE TO LAMENT THE
ROLE OF JOURNALISTS IN THIS
CASE.
NOBODY CARES THAT JOURNALISTS
ARE BEING SURVEILLED.
THE ISSUES ARE MUCH LARGER.
THE FACT IS JOURNALISTS ARE THE
MEDIUM TO CONVEY VERY IMPORTANT
MESSAGES, AND IF WHISTLEBLOWERS
AND SOURCES, CONFIDENTIAL,
VULNERABLE SOURCES FEEL THEY
CAN'T COME TALK TO US, THAT
MEANS VERY IMPORTANT VITAL
PUBLIC INTEREST ISSUES NEVER GET
AIRED, NOTHING CHANGES, AND
ULTIMATELY, YOU KNOW, IT'S ALL
KEPT UNDER THE CARPET.
I'M NOT SUGGESTING ANYONE SHOULD
CARE ABOUT JOURNALISTS BEING
SURVEILLED BUT THEY SHOULD
CERTAINLY CARE ABOUT THE WORK OF
JOURNALISTS NOT BEING AIRED AND
PUBLISHED.

Steve says LET'S TALK A BIT
HERE ABOUT WHAT THE PUBLIC
ACTUALLY THINK ABOUT THIS.
DO YOU WANT TO BRING THIS UP,
SHELDON?
CHRIS, I'LL GET YOU TO COMMENT FIRST.

A slate appears on screen, with the title "Digital privacy."
It shows poll results to two sentences. The first says "Every Canadian has the right to complete digital privacy." 47 percent responded agree, 15 percent unsure, 38 percent disagree.
The second reads "Do police and intelligence agencies have the ability to monitor your internet activities?" 94 percent agreed and 6 percent disagreed.

Steve says AS PART OF THE TORONTO STAR
SERIES SOME POLLING WAS
CONDUCTED WHICH SHOWS HALF OF
CANADIANS DO BELIEVE WE HAVE A
RIGHT TO COMPLETE DIGITAL
PRIVACY.
94 percent BELIEVE THAT POLICE AND
INTELLIGENCE AGENCIES ALREADY
HAVE THE ABILITY TO MONITOR OUR
INTERNET ACTIVITIES.
IS THAT AN ACCURATE PERCEPTION
IN YOUR WORLD?

The caption changes to "Oversight and surveillance overreach."

Christopher says I
DON'T KNOW ANYONE IN THE SORT OF
MAINSTREAM ACADEMIC COMMUNITY OR
CIVIL LIBERTIES COMMUNITY THINK
THAT POLICE HAVE AN ABSOLUTE
RIGHT TO PRIVACY.
WE HAVE RIGHTS AND EXPECTATIONS
AND NORMS BUT NO RIGHT TO
PRIVACY IS ABSOLUTE.
NOW, IN TERMS OF PEOPLE'S
PERCEPTIONS AS TO WHAT
AUTHORITIES CAN DO OR NOT DO, I
THINK THERE'S A SERIES OF
PROBLEMS.
PART OF IT IS, THE INFORMATION
THAT HAS COME OUT OVER THE YEARS
AROUND THESE ISSUES... THIS
ISN'T THE FIRST TIME WE'VE
TALKED ABOUT THESE POWERS.
THEY HAVE BEEN CYCLED THROUGH
POLICY DEBATES NOW FOR ALMOST A
DECADE.
ANY TIME WE DO GET DATA, IT'S
INCREMENTAL AND PIECEMEAL.
TO TOUCH ON SUBSCRIBER DATA,
SEVERAL YEARS AGO THE PRIVACY
COMMISSIONER RELEASED
INFORMATION THAT IN A SINGLE
YEAR THERE WERE APPROXIMATELY
1.3 MILLION REQUESTS FOR THIS
THAT AFFECTED 800,000 CANADIANS.

Steve says 1.3 MILLION REQUESTS...

Christopher says ACROSS
CANADA.
IT WAS A NON-COMPLETE NUMBER OF
ISPs THAT PROVIDED RESPONSES
THAT AFFECTED 800,000 CANADIANS
OR MORE.
SO THESE ARE POWERS THAT WE HAVE
SEEN DISCUSSION ABOUT, BUT IT'S
ALWAYS FRAGMENTS.
SO IN CANADA, THE AUTHORITIES
ARE ONLY REQUIRED TO KEEP
RECORDS UNDER STATUTE FOR THE
NUMBER OF INTERCEPTIONS,
WIRETAPS ESSENTIALLY.
IT MEANS ALL THE OTHER POLICING
POWERS THAT HAVE BEEN GRANTED TO
THEM TO PURSUE CRIMINALS OVER
THE PAST THREE DECADES OR SO,
THEY DON'T HAVE TO KEEP TRACK
OF.
SO WE DON'T ACTUALLY KNOW HOW
OFTEN POWERS ARE USED TODAY.
SO WHEN NEW POWERS ARE PROPOSED
OR ADVANCED, WE'RE REALLY HAVING
THIS DISCUSSION THAT WE DON'T
HAVE DATA ON THE TABLE.
WE HAVE, YOU KNOW, A SERIES OF
CASES AND IT'S REALLY HELPFUL WE
HAVE THEM ON THE TABLE NOW, BUT
WE DON'T HAVE THAT STATISTICAL
DATA, WHICH IS WHAT WE REALLY
NEED TO UNDERSTAND WHAT IS GOING
ON RIGHT NOW.
CANADIANS DON'T KNOW WHAT
AUTHORITIES DO.

Steve says WELL, THEY DON'T
KNOW.
HERE'S WHAT 94 percent OF THEM SAY.
DEPUTY CHIEF, 94 percent OF THEM SAY
YOU AND INTELLIGENCE AGENCIES
ALREADY HAVE THE ABILITY TO
MONITOR THEIR INTERNET
ACTIVITIES.
WHAT DO YOU MAKE OF THAT?

Scott says SO THE TECHNICAL
ABILITY, I WOULD SAY YES.
TO A CERTAIN LEVEL, AND I GO
BACK TO THAT WHOLE ASPECT OF THE
MASS SURVEILLANCE PROGRAM BY
POLICE ACROSS CANADA.
IN MY OPINION, IT'S NOT
HAPPENING.
IS IT HAPPENING IN THE SECURITY
INDUSTRY OR ON THE OTHER SIDE OF
THE LAW ENFORCEMENT COMMUNITY?
PERHAPS IT IS.
BUT IT'S NOT HAPPENING IN
POLICING.
SO DO WE HAVE... YES, WE DO HAVE
THE TECHNOLOGY.
AND WE HAVE TECHNOLOGY THAT IS
NOT LEADING EDGE BUT WE HAVE
TECHNOLOGY THAT FOLLOWS, AND I
CALL IT THE FOLLOWING TECHNOLOGY
CURVE WE HAVE.
I CAN GIVE YOU AN EXAMPLE OF A
CHILD PORNOGRAPHY INVESTIGATION
THAT WAS DONE A NUMBER OF YEARS
AGO AND I ATTENDED A MEDIA
LAUNCH ON IT WHERE WE ANNOUNCED
THE RESULTS OF A NUMBER OF
INDIVIDUALS ARRESTED ACROSS
ONTARIO AND WE ARRESTED BETWEEN
40 AND 50 INDIVIDUALS, BUT YET
WE IDENTIFIED 8500 INDIVIDUALS
THAT WERE PERHAPS ACCESSING THE
SAME INFORMATION, VISITING THE
SAME SITES.
TO ME, YES, WE DO HAVE THE
TECHNOLOGY.
YES, WE CAN IDENTIFY 40 TO 50
INDIVIDUALS.
BUT WE'RE ALSO AWARE OF 8500
INDIVIDUALS THAT WERE ACCESSING
THE SAME INFORMATION ACROSS
CANADA.
I THINK WE DO ACKNOWLEDGE THAT
WE HAVE TECHNOLOGY, WE DO
ACKNOWLEDGE THAT WE HAVE AN
OPPORTUNITY TO LEVERAGE
TECHNOLOGY, BUT WE DON'T HAVE
THE CAPACITY.
THE ASPECT OF CAPACITY TO DO IS
ALSO VERY IMPORTANT.
I'D HATE TO GET TO THAT
DISCUSSION BECAUSE IT TURNS INTO
RESOURCES AND THAT'S A
DISCUSSION NO ONE WANTS TO HAVE.

Steve says THAT'S ABOUT MONEY
AT THE END OF THE DAY.
HOW DID THAT SITUATION YOU
DESCRIBE, HOW DID IT WORK OUT
ULTIMATELY?

Scott says 40 TO 50 CHARGED
AND THE OTHER 8500, CLOSE TO
THAT, WITHIN 400 TO 500 OF THAT
NUMBER, BUT NO FURTHER ACTION
WAS TAKEN AT THAT TIME AGAINST
THOSE INDIVIDUALS.

Steve says SO IT IS OR IS NOT
BEFORE THE COURTS OR WHAT'S
HAPPENING NOW?

Scott says THE 40 OR 50
HAVE BEEN BEFORE THE COURTS.
THE OTHER 8500 MAY OR MAY NOT
HAVE BEEN CAPTURED IN SOME TYPE
OF SWEEP SOMEWHERE.
THAT'S NOT AN UNCOMMON STORY ON
CHILD PORNOGRAPHY
INVESTIGATIONS.
IT'S THAT CAPACITY AND THE
ABILITY TO GATHER INFORMATION IN
A LAWFUL MANNER REALLY LIMITS
THE ABILITY OF LAW ENFORCEMENT
ACROSS CANADA.

Steve says GOTCHA.
ROBERT, CAN YOU TELL US THE
DIFFERENCE BETWEEN EVIDENCE
THAT'S A PRODUCT OF THE BODY AND
EVIDENCE THAT'S A PRODUCT OF THE
MIND?
HELP US UNDERSTAND THE
DISTINCTION.

The caption changes to "Further complications."

Robert says IT'S
FASCINATING, FASCINATING LEGAL
CONCEPT.
CANADA IS IN THE COURSE OF DOING
THIS WORK.
ONE OF THE FOUR MEASURES THAT
POLICE WANT IS A LAW THAT WOULD
ALLOW THEM TO... IF YOU WERE THE
SUBJECT OF A CRIMINAL
INVESTIGATION, TO SAY WE BELIEVE
THERE'S EVIDENCE ON YOUR
TELEPHONE AND WE WOULD LIKE TO
ACCESS THE TELEPHONE.
WE'RE UNABLE TO DO SO BECAUSE OF
ENCRYPTION.
WE CAN'T GET IN.
WE TRIED.
WE CAN'T GET IN.
SO WE WOULD LIKE YOU TO OPEN
THAT PHONE FOR US, PLEASE, SO
PLEASE GIVE US YOUR PASSWORD AND
ALLOWS US TO OPEN THAT PHONE.
IF THERE WERE A LAW, UNDER
CRIMINAL THREAT, YOU WOULD HAVE
TO EITHER GIVE THAT OR NOT AND...

Steve says DO IT OR BE CHARGED.

Robert says RIGHT.
THE LEGAL ISSUE THIS BRINGS UP
IS SELF INCRIMINATION.
IN THIS COUNTRY WE HAVE A LAW
AROUND SELF INCRIMINATION.

Steve says MEANING YOU'RE NOT
OBLIGED TO DO IT.

Robert says RIGHT.
WE PUT THAT TO COMMISSIONER
PAULSON AND TO THE POLICE
AUTHORITIES AND THEY RAISED A
VERY, VERY INTERESTING POINT.
THEY SAY, OKAY, YES, WE HAVE A
LAW AROUND SELF INCRIMINATION,
BUT WE AS A SOCIETY HAVE
IDENTIFIED EXEMPTIONS
EFFECTIVELY TO THAT.
WE HAVE DECIDED THAT, FOR
EXAMPLE, IN CASES OF DRUNK
DRIVING, WE COMPEL YOU TO BLOW
INTO A MACHINE.
WE COMPEL YOU, BECAUSE THAT IS
SUCH A SCOURGE ON OUR SOCIETY,
WE HAVE AGREED THAT WE ARE GOING
TO ASK YOU TO PROVIDE US WITH
EVIDENCE FROM YOUR BODY...

Steve says TO INCRIMINATE YOURSELF.

Robert says IF IN FACT
YOU'RE DRUNK, THAT WILL SELF
INCRIMINATE YOU.
THE OTHER IS DNA SAMPLES.
IN A MURDER INVESTIGATION YOU
ARE COMPELLED TO PROVIDE DNA TO
ALLOW POLICE TO GATHER EVIDENCE
THAT MAY IN FACT BE USED AGAINST
YOU IN A MURDER TRIAL, FOR
EXAMPLE.
SO THAT'S THE ARGUMENT.
WHAT THE COURTS HAVE DONE, THIS
IS MAINLY... PRECEDENTS ARE
MAINLY AMERICAN AT THIS POINT.
THIS IS STILL VERY IN
DEVELOPMENT, I THINK, LEGALLY IN
CANADA, BUT THE NOTION IS THAT
COURTS HAVE DRAWN A DISTINCTION
BETWEEN THINGS LIKE YOUR BREATH
AND YOUR DNA, WHICH ARE PRODUCTS
OF YOUR BODY, AND THE NOTION OF
SUPPLYING POLICE WITH A PIECE OF
INFORMATION CONTAINED IN THE
MIND.
SO YOUR 4-DIGIT PASS CODE ON
YOUR PHONE IS IN FACT FROM HERE,
IT'S NOT A PRODUCT OF YOUR BODY,
AND THEREFORE PRIVACY ADVOCATES
WILL ARGUE THAT THAT'S
DIFFERENT.
NOW, IT GETS EVEN MORE GRAY.
BECAUSE INCREASINGLY ON OUR
PHONES WE USE OUR THUMBS...

Steve says FINGERPRINTS.

Robert says WHICH IS A
PRODUCT OF THE BODY.
WHERE DOES THAT COME IN?

Steve says THAT DIDN'T MAKE IT
ANY EASIER, DID IT?
IT'S MORE CONFUSING NOW.
SUKANYA...

Sukanya says I WAS DYING
TO JUMP IN.
I WANTED TO ADD TO WHAT ROB
SAID.
HE'S COMPLETELY RIGHT IN THE
SENSE THERE HAS BEEN A
DISTINCTION BETWEEN EVIDENCE OF
THE BODY AND EVIDENCE OF THE
MIND.
BUT LET'S TAKE THAT FURTHER.
WHEN SOMEBODY IS BREATHING INTO
A BREATHALYZER, THERE'S BEEN A
REASONABLE SUSPICION THAT THE
PERSON IS DRINKING OR WE AS A
SOCIETY HAVE DECIDED, OKAY, THIS
IS AN INVASION OF PRIVACY THAT
WE WILL ALLOW OR DEEM
REASONABLE.
IT FITS THAT TEST IN SECTION 1 I
WAS TALKING ABOUT, NECESSARY
PROPORTIONAL.
WE'RE ONLY LOOKING FOR ONE
THING.
SAME WITH THE DNA.
WE'RE ONLY LOOKING FOR A MATCH.

Steve says NOT A FISHING
EXPEDITION HERE.

Sukanya says EXACTLY.
IT'S LASER-FOCUSED, IF IT'S
PROPERLY USED AND PROPERLY
DISPOSED OF, WHICH IS A BIG IF,
BUT THAT IN ITSELF, THERE'S A
TARGETED COLLECTION AND USE AND
ULTIMATELY DESTRUCTION OF THAT
PIECE OF EVIDENCE...

Steve says I'M DOWN TO 30
SECONDS HERE.
I'VE GOT TO INTERRUPT.
I HAVE TO FIND OUT WHAT'S GOING
TO HAPPEN HERE?
THE FEDERAL GOVERNMENT HAS TO
MAKE A DECISION.
WHAT ARE THEY GOING TO DO?

The caption changes to "Information about information."

Sukanya says HOPEFULLY
THEY'RE GOING TO REMEMBER THAT
WE'VE HAD DECISIONS, LIKE
SPENCER, WE ALREADY HAVE A ROAD
MAP, WE HAVE A CHARTER THAT'S
TOLD US WE CAN DO SEARCHES AS
LONG AS THEY'RE REASONABLE.
WE CAN'T DO MASS SURVEILLANCE.
WE CAN'T DO MASS INFORMATION
GRABS.
I COMPLETELY UNDERSTAND THAT
SCOTT AND HIS FORCE MIGHT NOT BE
INVOLVED IN SOME MASS NATIONAL
SURVEILLANCE, BUT WE HAVE TO
REMEMBER THAT THE STATE HAS MANY
DIFFERENT ARMS.
THERE ARE INSTITUTIONS, WE'VE
ALREADY HAD REPORTS, AND WE HAVE
THE CSE THAT HAS ACCESS TO
DIFFERENT TECHNOLOGIES.
SO PRIVACY IS THERE SO THAT WE
CAN LIVE FREELY AND TELL THE
STATE YOU CAN COME THIS FAR BUT
NO FARTHER.

Steve says YOU THINK THE
FEDERAL GOVERNMENT WILL PUT THE
BRAKES ON HERE...

Sukanya says FRANKLY,
I'M QUITE CONCERNED.
I'M VERY CONCERNED.
THE DISCUSSION HAS BEEN FRAMED
IN TERMS OF FEAR AND A THREAT TO
SECURITY AS OPPOSED TO WHY THE
PROS OF PRIVACY... WE ONLY LOOK
AT THE CONS OF PRIVACY.
YOU DON'T LOOK AT THE PROS.
SO I'M CONCERNED ABOUT WHAT
MIGHT HAPPEN NEXT.

The caption changes to "Producer: Gregg Thurlbeck, @GreggThurlbeck"

Steve says I'VE GOT TO LEAVE IT
THERE.
WE'RE OUT OF TIME.
CAN I THANK THE DEPUTY CHIEF
FROM NORTH BAY, SCOTT TOD, AND
CHRISTOPHER PARSONS FROM THE
CITIZENS LAB, AND ROBERT CRIBB
FROM
THE TORONTO STAR, AND
SUKANYA PILLAY FROM THE CANADIAN
CIVIL LIBERTIES ASSOCIATION ON
THE OTHER SIDE OF THE TABLE.
APPRECIATE YOUR TIME, EVERYBODY.

Watch: Privacy and Policing in a Digital World