Supreme Court Rules Journalist Notes must be disclosed

[Cloud Cover]

https://www.jurist.org/news/2018/12/canada-top-court-rules-vice-media-must-turn-over-communications-with-suspected-terrorist/

I’m not sure why this is so surprising to journalists. The protection of confidential sources for journalism has never, and probably won’t ever, attract a degree of privilege like solicitor and client privilege or police informant confidentiality.
There is now a statutory scheme called the Journalistic Sources Protection Act which modifies the Evidence Act and the Criminal Codevwarrant procedures, and these offer some basic protections which did not exist except at common law, but even so a journalist is not a solicitor or a state investigator and is not entitled as of right to expect protection of their notes and sources. The most they can now get is an opportunity to participate in the process to attempt to limit overdisclosure.

 

[brihard]

Basically this decision is an elaboration on the long-standing Oakes test (as interpreted in the case of the media in Lessard) for the 'reasonable limitations' clause in S.1 of the Charter. Generally the Charter protects rights subject to reasonable limitations. So in this case at bar, the Charter rights in question are the freedom from arbitrary search and seizure. The court has ruled in short that confidential journalistic sources are still potentially subject to search warrant or production order to further a police investigation under the following conditions:

(l) The search/seizure is necessary because there are no alternative sources for the information required;
(2) The importance of the search/seizure outweighs the damage to be caused by the infringement of freedom of the press; and
(3) The warrant ensures that the search/seizure interferes with the press's freedom as little as possible.

So really with this ruling little has changed. Police sought to apply existing case law to confidential journalistic sources. Vice argued that this was essentially a novel set of circumstances that deserved to be treated differently and with a higher threshold of necessity. The SCC disagreed, and basically held that the existing already high threshold for getting a judicial authorization suffices in such cases. It's a reasonable decision in cases where there's very pressing and compelling public/national interest, such as protecting the country against acts of terrorism.

 

[FJAG]

Full text of case here:

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17398/index.do

:subbies:

 

[Cloud Cover]

They modified Lessard, having some genuine concerns about chilling effects on press freedom given their pedestal in a democracy. These effects are supposedly amplified through some modified considerations for the issuing judge. That being said, it’s pretty much always the case that a high bar for a warrant exists if it is really true that there are no alternative sources available.
Journalists will simply encrypt their data, and argue they cannot be compelled to provide a password or key. As an aside, there is a pretty strong and supportive dynamic between Vice and these guys: https://citizenlab.ca

 

[brihard]

They modified Lessard, having some genuine concerns about chilling effects on press freedom given their pedestal in a democracy. These effects are supposedly amplified through some modified considerations for the issuing judge. That being said, it’s pretty much always the case that a high bar for a warrant exists if it is really true that there are no alternative sources available.
Journalists will simply encrypt their data, and argue they cannot be compelled to provide a password or key. As an aside, there is a pretty strong and supportive dynamic between Vice and these guys: https://citizenlab.ca

There we might see the difference between the effects of a search warrant versus the effects of a production order. A search warrant authorizes search and seizure of some form of evidence that you can articulate your reasonable suspicion exists (as well as where, and what offences you believe it will help prove). In a production order, generally the existence of documentary evidence is established, merely the contents are not known- but it's reasonably suspected that those contents will in and of themselves afford the evidence. Since encrypted documents are still documents, I wouldn't see it as much of a stretch for a production order to be sought to compel disclosure of the documents themselves in readable form.

For comparison's sake- I've written search warrants to, for example, search a house for drugs and precursors, or to search the contents of an iPod for child porn and social media chat data, or to search the contents of a cell phone for communications pertinent to drug trafficking. I've written production orders for medical records, or for a cell phone company's records of who the owner of the phone was, and calls in and out from that phone and who the other parties were. A search warrant will generally deal with a thing or place or recepticle (and gets applied sort of strangely in the case of digital device contents), because I think we're gonna find something there to build my criminal case, whereas the production order is where I know documents exist because they are of records that either are typically kept or that someone has told me have been generated, and it's the specific things written in those records that will build my case.

Judicial authorizations can actually be kinda fun.

 

[Cloud Cover]

Hmmm. When I ran the compliance group at RIM, we only ever complied with an assistance order attached to a general search warrant to decrypt anything in cloud storage with the random entrophy key.  This required quite a bit of computer processing power, btw, and a company cryptographic engineer to do it.  This goes back a ways, but I think at the material time an assistance order could not be used in conjunction with what was then 487.014(1) production order. Maybe that’s changed, it’s been a few years...

 

[brihard]

Hmmm. When I ran the compliance group at RIM, we only ever complied with an assistance order attached to a general search warrant to decrypt anything in cloud storage with the random entrophy key.  This required quite a bit of computer processing power, btw, and a company cryptographic engineer to do it.  This goes back a ways, but I think at the material time an assistance order could not be used in conjunction with what was then 487.014(1) production order. Maybe that’s changed, it’s been a few years...

That's at a technical level way beyond anything I've ever touched. I have to defer to your much more specific knowledge on compliance with judicial authorizations form the standpoint of a hardware manufacturer ordered to 'crack' a device. From reading it though, that looks like a device was seized that was encrypted, and they wanted to search the contents of the device without specifically knowing what the contents are. I've never dealt with assistance orders, I'm wholly unfamiliar with them.

There's also a different legal nuance when you look at self-incrimination versus evidence of another party's criminality. E.g., a password protected device seized from a drug dealer that could incriminate the owner versus confidential informant info held by a journalist in her notes that could criminally implicate the subject of an interview. But the specific case law on this is beyond my knowledge.

 

[Cloud Cover]

R v Telus in 2008. The SCC made it pretty clear that a third party who can assist, must assist if there is a production order. A few years later they upped the type of order to a general warrant for stored data, citing increased expectations of privacy in stored content data and the position of trust placed by the accused on the third party record holder. Nothing is easy, nor should it be with these orders and warrants.
In a taxation case, the federal court forced eBay Canada to retrieve data from servers located in the US, and labelled corporate cloud storage as an electronic facade designed to evade compliance. An appeal would have been interesting, but did not occur.

 

[Journeyman]

...... genuine concerns about chilling effects on press freedom given their pedestal in a democracy.

Well, some  democracies.
I'm content with "necessary evil," for some press -- even the boot-licking type provides alternative perspectives for consideration... op:

 

[Cloud Cover]

Their place is held out in the Charter, no point in trying to erase that. The chilling effect would be an erosion of their Charter rights to have the freedom to inform through media communication and written format. The court seems to be saying that search warrants and production orders do not erode those rights, a further translation might be that they do not have the right to collect valuable intelligence and withhold it from the state. On the other hand, freedom of expression does not give them license to just make stuff up- fake news. We are striking a good balance here, in general.

 

[Retired AF Guy]

There we might see the difference between the effects of a search warrant versus the effects of a production order. A search warrant authorizes search and seizure of some form of evidence that you can articulate your reasonable suspicion exists (as well as where, and what offences you believe it will help prove). In a production order, generally the existence of documentary evidence is established, merely the contents are not known- but it's reasonably suspected that those contents will in and of themselves afford the evidence. Since encrypted documents are still documents, I wouldn't see it as much of a stretch for a production order to be sought to compel disclosure of the documents themselves in readable form.

Just curious as to which comes first; search warrant then production order or vice versa; or can they work in parallel to each other?

 

[brihard]

Just curious as to which comes first; search warrant then production order or vice versa; or can they work in parallel to each other?

I’ve never done an investigation with multiple related judicial authorizations. But if, say, you seize a computer or phone or search a house or something because you’re looking for data/documents, you don’t then need a production order to get those once you have the house or device. Production orders are more generally aimed at institutional/corporate entities for documents that are routine parts of what they do. Most often they’re for records that don’t criminally implicate the person/entity holding them. If I think Acme Telecom corporation has customer records showing that Bob Bloggins has a certain phone account and made certain calls, I get a production order and they turn it over. Versus, if I think Acme Telecom is engaged in fraud and I want their records as evidence to charge them, it’s probably more prudent to show up with a search warrant so that they don’t destroy or alter the evidence. E.g., a weird but good example, when the grocery stores got dinged in the criminal investigation for price fixing bread, police were showing up tonexecute search warrants on the offices of grocery stores and seizing records, computers etc.

 

[Cloud Cover]

The assistance order is usually required because companies would go belly up if they had to pull servers off line from production environments and hand them to the police to be searched (and what if the data is scattered in cloud servers all over the globe). Therefore, the assistance order compels the service provider to assist with the search and facilitate the objectives of the warrant by using their compliance systems to access the servers, retrieve the records, documents or data requested and produce them in human readable form.

With respect to encryption, think of it like a bank vault. It is unlikely the police would attempt to compel the manufacturer of the vault to hand over the security plans and schematics just to get access to a safety deposit box. But they would try compel someone with the combination to open it up for them with an assistance order.

This is exactly what Apple attempted to fight about 2 years back in regards to being ordered by a court to disclose their own proprietary security in iOS or cause the data to be available by other means. They were prepared to fight that tooth and nail, but then a bright Canadian lad became involved and performed the work for the FBI, (and not for a beer and a hamburger.)

Apple then subsequently attempted to obtain a court order requiring the FBI to disclose the methods used to circumvent their security. It turns out the person with those skills was not within the jurisdiction of a US Court (SDNY), and the Court declined to make the order anyway.

 

[brihard]

The assistance order is usually required because companies would go belly up if they had to pull servers off line from production environments and hand them to the police to be searched (and what if the data is scattered in cloud servers all over the globe). Therefore, the assistance order compels the service provider to assist with the search and facilitate the objectives of the warrant by using their compliance systems to access the servers, retrieve the records, documents or data requested and produce them in human readable form.

With respect to encryption, think of it like a bank vault. It is unlikely the police would attempt to compel the manufacturer of the vault to hand over the security plans and schematics just to get access to a safety deposit box. But they would try compel someone with the combination to open it up for them with an assistance order.

This is exactly what Apple attempted to fight about 2 years back in regards to being ordered by a court to disclose their own proprietary security in iOS or cause the data to be available by other means. They were prepared to fight that tooth and nail, but then a bright Canadian lad became involved and performed the work for the FBI, (and not for a beer and a hamburger.)

Apple then subsequently attempted to obtain a court order requiring the FBI to disclose the methods used to circumvent their security. It turns out the person with those skills was not within the jurisdiction of a US Court (SDNY), and the Court declined to make the order anyway.

Awesome insight and analogy, thank you.

Re: Apple- I think you’re referring to the iPhone owned by the San Bernardino shooter? I know that newer versions of iOS a few years ago became a brutal problem for ‘routine’ police department level data extractions.

 

[JesseWZ]

Awesome insight and analogy, thank you.

Re: Apple- I think you’re referring to the iPhone owned by the San Bernardino shooter? I know that newer versions of iOS a few years ago became a brutal problem for ‘routine’ police department level data extractions.

I've written a number of SW and Production Orders and at least at the warrant level, we generally write an assistance order for at least a locksmith to avoid damaging property unnecessarily. It also covers the locksmith as SW's typically only apply to Peace Officers and therefore we're asking the locksmith to do something illegal on our behalf (committing mischief for our judicially authorized entry). I've yet to write a production order that required an assistance order, but could see the logic behind it.

As a semi-related aside, in the current production order scheme, you cannot compel a subject of an investigation to turn over documents or data (the material typically covered by production order). Nor would you want to, as the quality of your evidence would be highly suspect. You can hit a third party record holder (such as a bank or telecomm provider) for records *about* that subject but cannot hit the subject for records covering themselves. Anything you need from the subject or their property has to fall out of a lawful search incident to arrest or a warrant.

 

[JesseWZ]

Just curious as to which comes first; search warrant then production order or vice versa; or can they work in parallel to each other?

I apologize for the double post... I was originally going to reply to you, but got lost in the rest of the thread. The answer is all of the above. It depends what you're seeking.

For example:
For a lot of digital media investigations (ie child porn), we'd write a production order first for subscriber information to identify the address based off an IP, and then a search warrant to search the house for digital media and computers. In that case, the Pro Order came first. It's also important to note that generally SW's and Pro Orders have different standards for authorization. Most (3 out of 5 I think, but I'd have to go back and read the scheme) production orders only require reasonable grounds to suspect whereas a warrant is always reasonable grounds to believe.

 

[Cloud Cover]

Cannot obtain an Assistance Order for a Production order.  Must be an "authorization" (to intercept private communication) or a "warrant":

Assistance order

"487.02 If an authorization is given under section 184.2, 184.3, 186 or 188 or a warrant is issued under this Act, the judge or justice who gives the authorization or issues the warrant may order a person to provide assistance, if the person’s assistance may reasonably be considered to be required to give effect to the authorization or warrant."

The Production Order provisions of the Criminal Code put all of the onus to comply on the third party service provider for preservation and production.  There is an entire industry of lawful access compliance vendors who build equipment to facilitate compliance with all types of production orders and warrants. Also, if it is non-trivial to decrypt communications, a service provider does not have to perform that function, however Special "I" and other entities usually have more than enough ideas to do what is required. That being said, there remains the disturbing problem of "going dark", and some work arounds are difficult to achieve.

I was reading yesterday about the KSA journalist who was allegedly murdered in Turkey. He was an avid user of WhatsApp, a full end to end encrypted application for chatting. There is software/spyware (for but one example: Pegasus) that can be installed silently onto pretty much any device that copies encryption keys or contents of communications to remote servers. As it turns out, it appears that more than one government agency (other than the KSA) may have been monitoring Kashogi's communications and the communications between his killers and MBS: https://www.nytimes.com/2018/12/04/us/politics/cia-senate-khashoggi-.html

For an explanation of Pegasus, read here: https://citizenlab.ca/2018/09/hide-and-seek-tracking-nso-groups-pegasus-spyware-to-operations-in-45-countries/ 
Warning do not access from a government server or you will be flagged by Citizens Lab and by your own IT security department. Also, be warned Citizens Lab likely has a copy of Pegasus in source code and could probably modify it for their own purposes. .