Privacy Rights

[trece verde]

On a semi-related note. Regs, feel free to move to a new thread if you feel it's not close enough to the topic.

A question of philosophy...

What do you lot think? IMHO, the challenge here is not that it's not personal property - it belonged to his employer, but was obviously used personally - but that the ability to use the decryption technology would definitely be pushed beyond this case. I don't believe (and apparently neither does Apple) that the FBI would not use this technology again once they get it, which would render the encryption technology pointless. Who really needs encryption on a phone? Convince me you've never taken your cell phone to work...

 

[Regs]

The issue for me here is a matter of trust... and that ship sailed with all the Edward Snowden / NSA stuff.

Any USA government arm can't be trusted on this stuff, 100% they would use again and again and again.

 

[trece verde]

Given. This is why my current source of employment has customers, based substantially on EU Safe Harbour and PIPEDA requirements. They are bound by law to keep their data out of the US.

The question is more about the rationale for requesting access to data: what should government types be able to access, and under what circumstances?

 

[Sir M]

Trece, this may be used as a guide for you on this in Canada, and answer your questions.

You have to be someone who is legally authorized and designated by the Attorney General to do legally invade privacy/intercept private communications, and you can only do so if you can satisfy a Supreme Court Justice (normally the Chief Justice or the Associate Chief Justice), who you must convince in writing under oath that you have reasonable grounds to believe someone has committed the offence listed in S. 183 (below). Then you have to convince the same Justice that there is no other investigative technique that would render the requisite evidence to support a charge listed below.

If so authorized, you are then (with a few rare exceptions) only authorized to legally invade privacy for 60 days, and there are strict rules under penalty of law against sharing of information in relation to, or the existence of, that invasion of privacy. There are a few strict exceptions to those rules which are listed in S. 193 (2) of the Criminal Code of Canada but I won't list that here.

...another more practical strategy may be sidling up to a group of Richmond guys in the beer
garden at Nations Cup.

Criminal Code (R.S.C., 1985, c. C-46)

PART VI Invasion of Privacy
Definitions
Marginal noteefinitions

183 In this Part,

authorization means an authorization to intercept a private communication given under section 186 or subsection 184.2(3), 184.3(6) or 188(2); (autorisation)

electro-magnetic, acoustic, mechanical or other device means any device or apparatus that is used or is capable of being used to intercept a private communication, but does not include a hearing aid used to correct subnormal hearing of the user to not better than normal hearing; (dispositif électromagnétique, acoustique, mécanique ou autre)

intercept includes listen to, record or acquire a communication or acquire the substance, meaning or purport thereof; (intercepter)

offence means an offence contrary to, any conspiracy or attempt to commit or being an accessory after the fact in relation to an offence contrary to, or any counselling in relation to an offence contrary to

• (a) any of the following provisions of this Act, namely,
  
  
  • (i) section 47 (high treason),
    
    
  • (ii) section 51 (intimidating Parliament or a legislature),
    
    
  • (iii) section 52 (sabotage),
    
    
  • (iii.1) section 56.1 (identity documents),
    
    
  • (iv) section 57 (forgery, etc.),
    
    
  • (v) section 61 (sedition),
    
    
  • (vi) section 76 (hijacking),
    
    
  • (vii) section 77 (endangering safety of aircraft or airport),
    
    
  • (viii) section 78 (offensive weapons, etc., on aircraft),
    
    
  • (ix) section 78.1 (offences against maritime navigation or fixed platforms),
    
    
  • (x) section 80 (breach of duty),
    
    
  • (xi) section 81 (using explosives),
    
    
  • (xii) section 82 (possessing explosives),
    
    
  • (xii.01) section 82.3 (possession, etc., of nuclear material, radioactive material or device),
    
    
  • (xii.02) section 82.4 (use or alteration of nuclear material, radioactive material or device),
    
    
  • (xii.03) section 82.5 (commission of indictable offence to obtain nuclear material, etc.),
    
    
  • (xii.04) section 82.6 (threats),
    
    
  • (xii.1) section 83.02 (providing or collecting property for certain activities),
    
    
  • (xii.2) section 83.03 (providing, making available, etc., property or services for terrorist purposes),
    
    
  • (xii.3) section 83.04 (using or possessing property for terrorist purposes),
    
    
  • (xii.4) section 83.18 (participation in activity of terrorist group),
    
    
  • (xii.41) section 83.181 (leaving Canada to participate in activity of terrorist group),
    
    
  • (xii.5) section 83.19 (facilitating terrorist activity),
    
    
  • (xii.51) section 83.191 (leaving Canada to facilitate terrorist activity),
    
    
  • (xii.6) section 83.2 (commission of offence for terrorist group),
    
    
  • (xii.61) section 83.201 (leaving Canada to commit offence for terrorist group),
    
    
  • (xii.62) section 83.202 (leaving Canada to commit offence that is terrorist activity),
    
    
  • (xii.7) section 83.21 (instructing to carry out activity for terrorist group),
    
    
  • (xii.8) section 83.22 (instructing to carry out terrorist activity),
    
    
  • (xii.81) subsection 83.221(1) (advocating or promoting commission of terrorism offences),
    
    
  • (xii.9) section 83.23 (harbouring or concealing),
    
    
  • (xii.91) section 83.231 (hoax — terrorist activity),
    
    
  • (xiii) section 96 (possession of weapon obtained by commission of offence),
    
    
  • (xiii.1) section 98 (breaking and entering to steal firearm),
    
    
  • (xiii.2) section 98.1 (robbery to steal firearm),
    
    
  • (xiv) section 99 (weapons trafficking),
    
    
  • (xv) section 100 (possession for purpose of weapons trafficking),
    
    
  • (xvi) section 102 (making automatic firearm),
    
    
  • (xvii) section 103 (importing or exporting knowing it is unauthorized),
    
    
  • (xviii) section 104 (unauthorized importing or exporting),
    
    
  • (xix) section 119 (bribery, etc.),
    
    
  • (xx) section 120 (bribery, etc.),
    
    
  • (xxi) section 121 (fraud on government),
    
    
  • (xxii) section 122 (breach of trust),
    
    
  • (xxiii) section 123 (municipal corruption),
    
    
  • (xxiv) section 132 (perjury),
    
    
  • (xxv) section 139 (obstructing justice),
    
    
  • (xxvi) section 144 (prison breach),
    
    
  • (xxvii) subsection 145(1) (escape, etc.),
    
    
  • (xxvii.1) section 162 (voyeurism),
    
    
  • (xxvii.2) section 162.1 (intimate image),
    
    
  • (xxviii) paragraph 163(1)(a) (obscene materials),
    
    
  • (xxix) section 163.1 (child pornography),
    
    
  • (xxix.1) section 170 (parent or guardian procuring sexual activity),
    
    
  • (xxix.2) section 171 (householder permitting sexual activity),
    
    
  • (xxix.3) section 171.1 (making sexually explicit material available to child),
    
    
  • (xxix.4) section 172.1 (luring a child),
    
    
  • (xxix.5) section 172.2 (agreement or arrangement — sexual offence against child),
    
    
  • (xxx) section 184 (unlawful interception),
    
    
  • (xxxi) section 191 (possession of intercepting device),
    
    
  • (xxxii) subsection 201(1) (keeping gaming or betting house),
    
    
  • (xxxiii) paragraph 202(1)(e) (pool-selling, etc.),
    
    
  • (xxxiv) subsection 210(1) (keeping common bawdy house),
    
    
  • (xxxv) to (xxxviii) [Repealed, 2014, c. 25, s. 11]
    
    
  • (xxxix) section 235 (murder),
    
    
  • (xxxix.1) section 244 (discharging firearm with intent),
    
    
  • (xxxix.2) section 244.2 (discharging firearm — recklessness),
    
    
  • (xl) section 264.1 (uttering threats),
    
    
  • (xli) section 267 (assault with a weapon or causing bodily harm),
    
    
  • (xlii) section 268 (aggravated assault),
    
    
  • (xliii) section 269 (unlawfully causing bodily harm),
    
    
  • (xliii.1) section 270.01 (assaulting peace officer with weapon or causing bodily harm),
    
    
  • (xliii.2) section 270.02 (aggravated assault of peace officer),
    
    
  • (xliv) section 271 (sexual assault),
    
    
  • (xlv) section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm),
    
    
  • (xlvi) section 273 (aggravated sexual assault),
    
    
  • (xlvii) section 279 (kidnapping),
    
    
  • (xlvii.1) section 279.01 (trafficking in persons),
    
    
  • (xlvii.11) section 279.011 (trafficking of a person under the age of eighteen years),
    
    
  • (xlvii.2) section 279.02 (material benefit),
    
    
  • (xlvii.3) section 279.03 (withholding or destroying documents),
    
    
  • (xlviii) section 279.1 (hostage taking),
    
    
  • (xlix) section 280 (abduction of person under sixteen),
    
    
  • (l) section 281 (abduction of person under fourteen),
    
    
  • (li) section 282 (abduction in contravention of custody order),
    
    
  • (lii) section 283 (abduction),
    
    
  • (lii.1) 286.1 (obtaining sexual services for consideration),
    
    
  • (lii.2) 286.2 (material benefit from sexual services),
    
    
  • (lii.3) 286.3 (procuring),
    
    
  • (lii.4) 286.4 (advertising sexual services),
    
    
  • (liii) section 318 (advocating genocide),
    
    
  • (liv) section 327 (possession of device to obtain telecommunication facility or service),
    
    
  • (liv.1) section 333.1 (motor vehicle theft),
    
    
  • (lv) section 334 (theft),
    
    
  • (lvi) section 342 (theft, forgery, etc., of credit card),
    
    
  • (lvi.1) section 342.01 (instruments for copying credit card data or forging or falsifying credit cards),
    
    
  • (lvii) section 342.1 (unauthorized use of computer),
    
    
  • (lviii) section 342.2 (possession of device to obtain unauthorized use of computer system or to commit mischief),
    
    
  • (lix) section 344 (robbery),
    
    
  • (lx) section 346 (extortion),
    
    
  • (lxi) section 347 (criminal interest rate),
    
    
  • (lxii) section 348 (breaking and entering),
    
    
  • (lxii.1) section 353.1 (tampering with vehicle identification number),
    
    
  • (lxiii) section 354 (possession of property obtained by crime),
    
    
  • (lxiii.1) section 355.2 (trafficking in property obtained by crime),
    
    
  • (lxiii.2) section 355.4 (possession of property obtained by crime — trafficking),
    
    
  • (lxiv) section 356 (theft from mail),
    
    
  • (lxv) section 367 (forgery),
    
    
  • (lxvi) section 368 (use, trafficking or possession of forged document),
    
    
  • (lxvi.1) section 368.1 (forgery instruments),
    
    
  • (lxvii) section 372 (false information),
    
    
  • (lxviii) section 380 (fraud),
    
    
  • (lxix) section 381 (using mails to defraud),
    
    
  • (lxx) section 382 (fraudulent manipulation of stock exchange transactions),
    
    
  • (lxx.1) subsection 402.2(1) (identity theft),
    
    
  • (lxx.2) subsection 402.2(2) (trafficking in identity information),
    
    
  • (lxx.3) section 403 (identity fraud),
    
    
  • (lxxi) section 423.1 (intimidation of justice system participant or journalist),
    
    
  • (lxxii) section 424 (threat to commit offences against internationally protected person),
    
    
  • (lxxii.1) section 424.1 (threat against United Nations or associated personnel),
    
    
  • (lxxiii) section 426 (secret commissions),
    
    
  • (lxxiv) section 430 (mischief),
    
    
  • (lxxv) section 431 (attack on premises, residence or transport of internationally protected person),
    
    
  • (lxxv.1) section 431.1 (attack on premises, accommodation or transport of United Nations or associated personnel),
    
    
  • (lxxv.2) subsection 431.2(2) (explosive or other lethal device),
    
    
  • (lxxvi) section 433 (arson),
    
    
  • (lxxvii) section 434 (arson),
    
    
  • (lxxviii) section 434.1 (arson),
    
    
  • (lxxix) section 435 (arson for fraudulent purpose),
    
    
  • (lxxx) section 449 (making counterfeit money),
    
    
  • (lxxxi) section 450 (possession, etc., of counterfeit money),
    
    
  • (lxxxii) section 452 (uttering, etc., counterfeit money),
    
    
  • (lxxxiii) section 462.31 (laundering proceeds of crime),
    
    
  • (lxxxiv) subsection 462.33(11) (acting in contravention of restraint order),
    
    
  • (lxxxv) section 467.11 (participation in criminal organization),
    
    
  • (lxxxv.1) section 467.111 (recruitment of members — criminal organization),
    
    
  • (lxxxvi) section 467.12 (commission of offence for criminal organization), or
    
    
  • (lxxxvii) section 467.13 (instructing commission of offence for criminal organization),
    
• (b) section 198 (fraudulent bankruptcy) of the Bankruptcy and Insolvency Act,
  
  
• (b.1) any of the following provisions of the Biological and Toxin Weapons Convention Implementation Act, namely,
  
  
  • (i) section 6 (production, etc., of biological agents and means of delivery), or
    
    
  • (ii) section 7 (unauthorized production, etc., of biological agents),
    
• (c) any of the following provisions of the Competition Act, namely,
  
  
  • (i) section 45 (conspiracies, agreements or arrangements between competitors),
    
    
  • (ii) section 47 (bid-rigging), or
    
    
  • (iii) subsection 52.1(3) (deceptive telemarketing),
    
• (d) any of the following provisions of the Controlled Drugs and Substances Act, namely,
  
  
  • (i) section 5 (trafficking),
    
    
  • (ii) section 6 (importing and exporting), or
    
    
  • (iii) section 7 (production),
    
• (d.1) section 42 (offences related to infringement of copyright) of the Copyright Act,
  
  
• (e) section 3 (bribing a foreign public official) of the Corruption of Foreign Public Officials Act,
  
  
• (e.1) the Crimes Against Humanity and War Crimes Act,
  
  
• (f) either of the following provisions of the Customs Act, namely,
  
  
  • (i) section 153 (false statements), or
    
    
  • (ii) section 159 (smuggling),
    
• (g) any of the following provisions of the Excise Act, 2001, namely,
  
  
  • (i) section 214 (unlawful production, sale, etc., of tobacco or alcohol),
    
    
  • (ii) section 216 (unlawful possession of tobacco product),
    
    
  • (iii) section 218 (unlawful possession, sale, etc., of alcohol),
    
    
  • (iv) section 219 (falsifying or destroying records),
    
    
  • (v) section 230 (possession of property obtained by excise offences), or
    
    
  • (vi) section 231 (laundering proceeds of excise offences),
    
• (h) any of the following provisions of the Export and Import Permits Act, namely,
  
  
  • (i) section 13 (export or attempt to export),
    
    
  • (ii) section 14 (import or attempt to import),
    
    
  • (iii) section 15 (diversion, etc.),
    
    
  • (iv) section 16 (no transfer of permits),
    
    
  • (v) section 17 (false information), or
    
    
  • (vi) section 18 (aiding and abetting),
    
• (i) any of the following provisions of the Immigration and Refugee Protection Act, namely,
  
  
  • (i) section 117 (organizing entry into Canada),
    
    
  • (ii) section 118 (trafficking in persons),
    
    
  • (iii) section 119 (disembarking persons at sea),
    
    
  • (iv) section 122 (offences related to documents),
    
    
  • (v) section 126 (counselling misrepresentation), or
    
    
  • (vi) section 129 (offences relating to officers),
    
• (j) any offence under the Security of Information Act, or
  
  
• (k) section 51.01 (offences related to goods, labels, packaging or services) of the Trade-marks Act,
  

and includes any other offence that there are reasonable grounds to believe is a criminal organization offence or any other offence that there are reasonable grounds to believe is an offence described in paragraph (b) or (c) of the definition terrorism offence in section 2; (infraction)

police officer means any officer, constable or other person employed for the preservation and maintenance of the public peace; (policier)

private communication means any oral communication, or any telecommunication, that is made by an originator who is in Canada or is intended by the originator to be received by a person who is in Canada and that is made under circumstances in which it is reasonable for the originator to expect that it will not be intercepted by any person other than the person intended by the originator to receive it, and includes any radio-based telephone communication that is treated electronically or otherwise for the purpose of preventing intelligible reception by any person other than the person intended by the originator to receive it; (communication privée)

public switched telephone network means a telecommunication facility the primary purpose of which is to provide a land line-based telephone service to the public for compensation; (réseau téléphonique public commuté)

radio-based telephone communication means any radiocommunication within the meaning of the Radiocommunication Act that is made over apparatus that is used primarily for connection to a public switched telephone network; (communication radiotéléphonique)

sell includes offer for sale, expose for sale, have in possession for sale or distribute or advertise for sale; (vendre)

solicitor means, in the Province of Quebec, an advocate or a notary and, in any other province, a barrister or solicitor. (avocat)

Sir M

 

[trece verde]

Thanks for the research, Sir M. Always appreciated.

What I was looking at is a slightly different circumstance, however, where the event has already happened. I understand the requirements for interception of communication; what I'm looking for are opinions about the obligation (moral, not legal) of a manufacturer like Apple to release proprietary technology to permit forensic work, and about the Pandora's box that could follow.

 

[Sir M]

Trece what I am trying to say is that Apple would only provide that "key" under the circumstances as I described by law. In other words all of the same legal rules apply, it is just that once an Authorization to intercept is granted, then that Authorization applies to encrypted communications as well. In law, there is no distinction between encrypted and non-encrypted communications; if authorization is granted then those communications can be legally intercepted as described above. It is really just a technology issue when we talk about this "key"; all that means when the authorization is granted, Apple or other telephone carriers must comply by unlocking encrypted communications, so in law nothing is different. This could be done on a case by case basis when the appropriate legal authorization that is in place, again, only under the circumstances as set out in the Criminal Code (see above).

Apple is protesting because it affects their bottom line.

 

[Regs]

The "authorities" are protesting because it affects their ability to invoke fear into its citizens.

 

[Sir M]

Yes they are especially concerned with those guys that like to watch fireworks.

 

[trece verde]

Partial disclaimer: I work in this industry and am very familiar with the requirements, structure, and topology of data security from a technical viewpoint.

Sir M has answered the second question I posed about what is legal for the state to access; the first one (about what the state SHOULD access) remains unanswered.

Regs on the other hand, is pushing buttons...

It may just be spin, but I think that there is a bit more at stake than just Apple's bottom line. In this case, I think that there is justification for the FBI to have access to the technology on the following basis ONLY:

1. the event has already happened - there is no dispute about culpability or "reasonable cause."
2. the phone was not the property of the individual - it belonged to his employer, and should have been used for work purposes only. Typically when an individual is no longer using employer-owned technology, it would have been wiped and then given to another employee.

The challenge as Regs and I see it is that the encryption technology becomes useless after it is given to the FBI. I honestly think that Apple will be able to sell ridiculous numbers of phone regardless of this, but I do see a philosophical issue with the technology being given to the FBI. As Regs mentioned, there appear to be no one-offs when government types were given access to this type of technology; it isn't given up voluntarily. Rather like your neighbour who keeps borrowing all your tools but never returns them.

The idea of encrypting data on a phone is not new; Blackberry had been doing this for years before Apple thought of it. There are now 3rd party companies offering this as apps; I got a sales pitch from one yesterday (ironic timing, although their sales type had been trying for a couple of weeks to hit me up). The idea of encrypting data to a higher standard than required by military specs is also not new, and this was one of the things that has been causing consternation.

My thought: Apple has its own techs (under FBI supervision) perform the unlock and then the FBI is given custody of the recovered information. This way the proprietary tech doesn't get turned over and everybody gets what they claim that they want...

 

[Sir M]

That is (your final thought) probably more or less how it would work I think Trece. Authorized invasion of privacy is the highest bar for the Crown (or in the US the US Attorney) to have to meet, much higher than say searching your home or taking your blood even. It is as more heavily regulated as anything in relation to criminal investigation that I can think of. Also extremely expensive. Finally, you have to remember that the government (police) does not concern itself about what the average citizen is up to as long as that citizen(s) is/are not victimizing others. The government only uses this type of technique on the worst of the worst; the very people that victimizes others in society.

 

[freddy]