CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, September 6, 2019

West & Forcese on Lawful Access to Encrypted Communications

Leah West and Craig Forcese (Carleton University - Norman Paterson School of International Affairs and University of Ottawa - Common Law Section) have posted Twisted Into Knots: Canada’s Challenges in Lawful Access to Encrypted Communications on SSRN. Here is the abstract:
In 2016, the Apple vs FBI case animated the “going dark” (communications encryption) debate in the United States. The Court battle between the tech giant and the most powerful law enforcement agency in the world stemmed from a mass shooting in December 2015, that left 14 people dead. Meanwhile, as American agents worked to unlock the shooter’s phone, prosecutors in Canada were seeking to convict seven men linked to the Montreal mafia for the 2011 abduction and murder of Sal "the Ironworker" Montagna, a member of New York’s Bonanno crime family. The evidence of the men’s conspiracy consisted almost entirely of intercepted emails, chats, and encrypted BlackBerry Pin to Pin messages. 

Publicly divulging the key would effectively render every BlackBerry user vulnerable to interception and endanger ongoing police investigations across the country, if not the world. Predictably, the Crown dropped the murder charges and the accused plead guilty to the significantly lesser offence of conspiracy to commit murder.
Over the next two years, the Crown would stay charges against dozens of other men rounded up in the same operation targeting Montreal organized crime; the encryption key was never disclosed. In this manner, the Mirarchi case encapsulates a quintessentially Canadian element of the “going dark” debate: the intelligence-to-evidence dilemma, and specifically, the risk that sensitive technical means and methods may be disclosed in open court under Canada’s broad criminal trial disclosure rules.

This article addresses the Canadian law governing “lawful access” to potentially encrypted data-in-motion; that is, communications done through electronic means. This article begins by outlining the core agencies responsible for counter-terrorism investigations in Canada, and the recent public debate and government consultation on encryption. Next, we identify how older laws designed for a different era may be leveraged to force service and platform providers to assist law enforcement and the Canadian Security Intelligence Service (CSIS) by decrypting communications and data. We will also touch on the legal capacity of these organizations to develop their own “workarounds,” including the role of Canada’s signal’s intelligence agency, the Communications Security Establishment (CSE). Throughout, we will highlight how Canada’s longstanding intelligence to evidence problem effects and, arguably exacerbates, the going dark phenomenon and consequently impairs Canadian counter-terrorism efforts. We predict legal reform resolving the “going dark” issue will be impossible without modernization of Canada’s disclosure regime.

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