In the United States, warrantless wiretapping has effectively become legalized for now. In Canada on the other hand, a wiretap without court approval is virtually unheard of.
Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes
This is precisely what happened during a protest.
In a dramatic turn of events, it has been revealed that a wiretap was issued on several protestors of the Mohawk tribe in Canada who were protesting poverty. The news story was leaked yesterday on Wikileaks in part because of a media ban on the subject.
According to the discussion page prosecutors were trying to ban the entire story from the media, but ultimately failed to do so. From the discussion page:
shortly after 5pm, lawyers for the CBC and Mr. Brant appeared before the same Appeals judge, along with Crown counsel. After substantial submissions, the judge lifted her earlier stay and dismissed the stay application altogether, ordering the publication ban lifted once more.
The appeal may go ahead in due course, but the media are at present free to publish all the evidence heard at the preliminary inquiry.
As reported briefly today, this decision makes crucial evidence available to public scrutiny for the first time. The preliminary inquiry dealt with charges arising from Mr. Brant’s participation in two highway and rail blockades held by Tyendinaga Mohawks in 2007 to pressure the government to resolve longstanding land claim and poverty-related grievances.
The documents include wiretap transcripts that feature OPP Commissioner Julian Fantino telling Mohawk protest leader Shawn Brant in a telephone conversation that, “your whole world’s going to come crashing down” and threatening to “do everything I can within your community and everywhere to destroy your reputation” during the blockade which took place on June 29th, 2007, on the AFN’s National Day of Action.
Since the media ban has been, at present, lifted, the CBC reported on the incident:
The documents include wiretap transcripts that feature Fantino telling Brant in a telephone conversation that “your whole world’s going to come crashing down” and threatening to “do everything I can within your community and everywhere to destroy your reputation” during the tense standoff between police and aboriginal protesters at blockade sites in eastern Ontario.
Rosenthal also said the tap on Brant’s cellphone was made without obtaining a court order. Rosenthal said while the Criminal Code allows for wiretaps without a court order in extreme situations, there was plenty of notice given about the day of action last year.
In short, the law enforcement in charge of keeping the situation calm ordered a wiretap on the protesters without a court order. It’s unlikely that the public will treat this aspect lightly because it puts into serious question just how far law enforcement is willing to go. In a country where privacy is of greater concern then in other countries, one might expect some form of outrage at some point in the near future.
This isn’t the first time Canada had to deal with overreaching surveillance. In 2006, the Canadian Liberal party tabled surveillance legislation that would get internet service providers to essentially spy on their own customers among other things. Back then, the Canadian Bar Association denounced (PDF) the legislation. Ultimately, the legislation died on the order paper.
Speculation on the latest wiretapping puts into serious question how often police enforcement will actually put in place a wiretap on someone without court approval. In the United States, when the warrantless wiretapping was deemed unconstitutional, it was, in part, what set the wheels in motion to push surveillance laws in the government which, more recently, passed (though many consumer rights organizations are now suing the government instead of the ISPs at this point in an effort to strike down the law)
Whether or not this recent wiretap will spark wiretapping legislation in the government is another story – though it is notable that this is generally what happened in the United States. Either way, it would be far more difficult to get warrantless wiretapping in Canada – though it doesn’t make the recent warrantless wiretap any less controversial. To add insult to injury, it doesn’t help much when Canadian media outlets were additionally censored as well.