The Vancouver Police Department will not say whether it uses a controversial surveillance device popular in at least 22 American states that can monitor people’s cellphone conversations and text messages.
The department’s refusal to acknowledge whether it has the device or considered using the technology has Pivot Legal Society wondering whether the VPD could secretly be using the electronic tool commonly referred to by its brand name, “StingRay.”
“I still don’t know,” said Pivot lawyer Douglas King, a member of the non-profit agency which made a request under the Freedom of Information and Protection of Privacy Act for any records related to the use, discussion or purchase of the device. “It’s entirely possible that they sussed it out but never went through with it. But it’s also entirely possible they did purchase one and they’ve been testing it out.”
The concern for Pivot is the device could infringe on an innocent person’s privacy rights when police are gathering evidence from a criminal’s phone. Also, unlike a wiretap which needs the approval of a judge, Pivot is worried the tool could be used without court-approved authority and hidden from court proceedings.
King acknowledged Pivot didn’t have any evidence the VPD owned a StingRay but was curious if the department followed their American counterparts in adopting the technology.
The device, which the American Civil Liberties Union says is used by law enforcement agencies in 22 states, can simulate a cellphone tower and trick a user’s phone to connect with the police device. It resembles an amplifier for a guitar and can fit in a suitcase.
The New York Times published a story in March saying the F.B.I cautioned that any disclosure by users of the technology could allow criminals and terrorists to circumvent it.
Const. Brian Montague, a VPD media liaison officer, said the Freedom of Information and Protection of Privacy Act permits police departments to refuse to “neither confirm or deny” the existence of certain records.
“We never provide information with regards to investigative tactics, so we wouldn’t provide that information through a [freedom of information] request, either,” Montague told the Courier.
Montague said the VPD’s response to Pivot’s request should not lead Pivot or the public to conclude that such a device is being used by the department.
“I’ll say that because the reason we would say that we don’t confirm or deny the existence of records is so that people don’t use the process of elimination,” he said. “It would be unfortunate for Pivot to make that assumption [that we have the device]. But we may and we may not.”
The written response from the VPD to Pivot said the head of a public body may refuse to disclose information if the disclosure could “reasonably be expected to…harm the effectiveness of investigative techniques and procedures currently used, or likely to be used, in law enforcement.”
In his experience, King said, the VPD will either turn over records requested under FOI requests or indicate that no records are available. This case, he added, doesn’t do that.
When asked what would be wrong with the VPD using the device to break up a violent gang network, King said Pivot wasn’t opposed to police using the tool to fight crime.
“But we don’t know what its capabilities are, or what it would be used for,” he said. “Certainly, there’s a suggestion that it could be used in a really appropriate way and really helpful way but we can’t even have that conversation if police aren’t going to tell us if they have the device.”
Pivot has appealed the VPD's response with the Office of the Information and Privacy Commissioner.
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