Wiretap Reports: Canada and the United States
- July 6, 2015
- Clayton Rice, Q.C.
In my post titled The Right to Notification dated August 2, 2014, I discussed s. 196 of the Criminal Code which contains the post facto transparency rule that a person who was the subject of a wiretap interception must be given notice within ninety days after the wiretap ended. It is an important requirement as it casts a constitutional light back on the search and seizure. I called notification the rear view mirror of wiretap law. What I did not say is that Canadian wiretap law has two rear view mirrors.
The second one is contained in s. 195 of the Code which requires the Minister of Public Safety and Emergency Preparedness to prepare and present to Parliament an annual report relating to wiretap authorizations in the preceding year. Sub-section (2) specifies that the report shall contain such information as: (a) the number of wiretap applications made as well as renewal applications; (b) the number of persons against whom proceedings were commenced; and, (c) the average period for which authorizations and renewals were granted. The most recent report available is the 2013 Annual Report on the Use of Electronic Surveillance published by Public Safety Canada.
An annual report is also made to the United States Congress as required by Title III of the Omnibus Crime Control and Safe Streets Act of 1968, s. 802, Pub. L. No. 90-351 and codified at 18 U.S.C. s. 2519. Sub-section 2519(3) requires the Administrative Office of the United States Courts (AO) to report the number of federal and state “applications for orders authorizing or approving the interception of wire, oral, or electronic communications pursuant to this chapter and the number of orders and extensions granted or denied pursuant to this chapter during the preceding calendar year” along with a summary and analysis of data required by s. 2519 to be filed with the AO. The most recent report available is the Wiretap Report 2014.
I will discuss the Canadian report first. The statistics are smaller in Canada because of the difference in population between the two countries. To keep it in perspective it helps to remember that the population of Canada is approximately that of California. I will leave the extrapolations to the statisticians except to draw some obvious inferences. An important point to make is that criminal law in Canada is federal jurisdiction. The Criminal Code applies federally and to Canada’s provinces and territories. Here are some highlights from the Canadian 2013 Annual Report.
- Audio interception was on the decline from 108 in 2009 to 78 in 2012 but rose to 80 in 2013. The use of video surveillance warrants has been generally on the rise from 29 in 2009 to 38 in 2013. Video surveillance warrants peaked at 41 in 2011.
- The duration of a wiretap is called the period of validity. The “average period of time valid” for authorizations and renewals increased to 58.4 days in 2013 from 56.3 days in 2009. That is, however, a drop from 71.8 days in 2012 which was the peak year in that five year period.
- Most authorizations were granted in relation to more than one offence. For example, an authorization in relation to trafficking in drugs under the Controlled Drugs and Substances Act often included a conspiracy to traffic charge under s. 465 of the Criminal Code. There were 224 authorizations granted in relation to drug offences in 2013. This was down from 271 in 2009 but up from 159 in 2012.
- Authorizations for the investigation of terrorism offences increased to 39 in 2013, up from 3 in 2009. However, that is a drop from 63 in 2012.
- The use of electronic surveillance in conspiracy and organized crime cases increased from 91 in 2012 to 108 in 2013. However, this still represents a decline from 120 in 2009 and the peak of 154 in 2011.
- The number of persons charged with an offence specified in an authorization has been declining steadily from a high of 334 in 2009 to 100 in 2013. The number of persons charged with a offence for which an authorization may be given but not specified in the authorization has also declined from 176 in 2009 to 24 in 2013.
- The number of persons arrested whose identity became known as a result of an interception has declined overall from 414 in 2009 to 149 in 2013.
- The total number of persons charged with all types of offences has also been steadily declining from a high in 2009 of 236 to 111 in 2013.
- There has been an overall decline in notifications under s. 196 of the Code as well from a high in 2009 of 1,086 to a low of 685 in 2013.
The United States Wiretap Report 2014 was released on July 1, 2015, and covers the period from January 1, 2014, to December 31, 2014. Forty-eight jurisdictions (the federal government, the District of Columbia, the Virgin Islands, Puerto Rico, and 44 states) have laws that authorize courts to issue wiretap orders. According to the report, a total of 3,554 wiretaps were reported as authorized in 2014, with 1,279 authorized by federal judges and 2,275 authorized by state judges. The number approved by federal judges decreased 13% in 2014 compared to 2013 and the number approved by state judges increased 8%. Here are some of the highlights.
- The most frequently identified location was the “portable device”. It is trite that the use of mobile communications, including text messaging and application software (“apps”) from cellular telephones have become widespread. In 2014, a total of 96% (3,409 wiretaps) of all authorized wiretaps were designated as portable devices.
- Prosecutors, under certain conditions, including a showing of probable cause to believe that actions taken by a party being investigated could have the effect of thwarting interception from a specified facility, may use “roving” wiretaps to target specific persons by using electronic devices at multiple locations rather than at a specific telephone or location [See: 18 U.S.C. s. 2518(11)] In 2014, four federal wiretaps and 19 state wiretaps were designated as roving.
- The number of state wiretaps in which encryption was encountered decreased from 41 in 2013 to 22 in 2014. In two of these cases, officials were unable to decipher the plain text of the messages. Three federal wiretaps were reported as being encrypted in 2014, of which two could not be decrypted. Encryption was also reported for five federal wiretaps that were conducted during previous years, but reported to the Administrative Office for the first time in 2014. Officials were able to decipher the plain text of the communications in four of the five intercepts.
- Drug offences represented 89% of all applications for intercepts (3,170 wiretaps). Homicide, the second most frequently cited crime, was specified in approximately 4% of the applications. Other major offences included smuggling and money laundering.
- The three major categories of surveillance are wire, oral and electronic communications. The most common method reported was wire surveillance that used a telephone (land line, cellular, cordless or mobile). Telephone wiretaps accounted for 93% (2,270 cases) of the intercepts installed in 2014. The majority of them involved cellular telephones.
- A total of 3,544 persons were arrested (down 5% from 2013) and 553 persons were convicted (down 22% from 2013). Federal wiretaps were responsible for 29% of the arrests and 27% of the convictions arising from wiretaps for this period. At the state level, the State Attorney General’s Office in Florida reported the largest number of arrests (261) and the highest number of convictions (67).
- The average period of duration was 34 days, down six days from the average in 2013. The federal wiretap with the most intercepts occurred in the District of Colorado and resulted in the interception of 55,073 messages over 90 days, including 5,821 incriminating interceptions. This was part of a broader conspiracy investigation that began in 2013 and involved seven related cell phone wiretaps. A total of 301,980 communications were intercepted during the investigation of which 34,926 were incriminating. The state wiretap with the most intercepts was a 455 day wiretap for a larceny investigation in Queen’s County, New York, that resulted in 350,230 intercepted cell phone conversations of which 19,888 were incriminating.
I will make two comments about these reports. First, the United States report contains information about the federal and state wiretaps with the largest number of communications intercepted. That is important in assessing the breadth of the state intrusion on privacy rights in wiretap investigations. This has been an historical deficiency in Canadian law that was rectified by an amendment to s. 195 of the Code that came into force on September 27, 2013. This information should be available in the next report. [See: S.C. 2013, c. 8, s. 5(3); now Code s. 195(2.1)(a)] Nevertheless, it appears that American investigations are similar in size to my experience with RCMP investigations in Alberta although not comparable to the largest investigations cited in Colorado and New York. [See e.g.: R. v. Chan, 2003 ABQB 759, 15 C.R. (6th) 53 at para. 33; and, R. v. Caines, 2011 ABQB 692, 518 A.R. 227 at para. 41] Second, the Canadian judiciary is more generous in granting longer wiretap authorizations. Wiretaps of 60 days in Canada are routinely granted for the asking. As the reports show, the average duration of a wiretap in Canada was 58.4 days in 2013. The average duration in the United States in 2014 was 34 days and that appears to be on the decline. I will follow up with an addendum when the Canadian report for 2014 is tabled in Parliament.