Canadian Prosecutors Cut Loose 35 Mafia Suspects Rather Than Turn Over Info On Stingray Devices

from the how-American-of-them dept

Tue, Apr 4th 2017 9:29am — Tim Cushing

Canadian law enforcement brought down a massive criminal conspiracy. Now, thanks to information it doesn't want to release to the court, most of what was brought down will be re-erected by the suspects it's cutting loose. (h/t Techdirt reader Pickle Monger)

Thirty five people accused of serious crimes like kidnapping and drug trafficking saw the cases brought against them in a major RCMP investigation into the Montreal Mafia dropped on Tuesday because the Crown no longer wants to prosecute them.

The Crown’s sudden change of stance in an investigation dubbed Project Clemenza meant there are only 11 accused left with cases pending following three series of arrests made between 2014 and May last year. Federal prosecutor Sabrina Delli Fraine informed Quebec Court Judge Lori Renée Weitzman of the Crown’s position during a hearing at the Montreal courthouse.

One of the defendants released is believed to be one of the leaders of the Montreal Mafia (which sounds like a Chicago mob farm team). The suspects were snared through the interception of communications, many of which appeared to originate on BlackBerry phones. As was covered here a year ago, the RCMP used a built-in BlackBerry "feature" to intercept and decrypt over "one million messages" during its investigation of a Mafia killing.

Here's the key part of the interception effort:

The RCMP maintains a server in Ottawa that "simulates a mobile device that receives a message intended for [the rightful recipient]." In an affidavit, RCMP sergeant Patrick Boismenu states that the server "performs the decryption of the message using the appropriate decryption key." The RCMP calls this the "BlackBerry interception and processing system."

This is part of the reason these Mafia defendants are seeing their charges dropped. The RCMP does not want to publicly discuss its BlackBerry interception methods. The other reason has to do with how the RCMP tracked down the phone numbers it wanted to intercept.

The RCMP used a mobile device identifier and Stober ordered that the Crown disclose information like the device’s signal strength and its potential impact on a BlackBerrys ability to make or receive phone calls while text messages are being intercepted from it.

This would likely be RCMP Stingray devices. Just like here in the US, Canadian law enforcement would rather see perps walk out of courtrooms than turn over information on interception efforts to defendants.

This is the largest of the RCMP's catch-and-release efforts, but it isn't the first. The National Post points out a similar dumping of defendants occurred last year for the same reason.

The Crown apparently does not want to disclose the investigative techniques used with the device. Last year, it did an about face in a murder trial and six men who were about to go on trial for the first-degree murder of Mafioso Salvatore Montagna were able to plead guilty to the lesser charge of conspiracy to commit murder.

At least in that case, law enforcement still ended up with a few convictions -- albeit on charges lower than what it had hoped to obtain going in.

Cell tower spoofers are resulting in a lot of contradictory law enforcement behavior. Cops say they don't want to turn over info on Stingrays to public records requesters for "public safety" reasons, claiming it could compromise methods and techniques and allow criminals to stay out of their reach. They make the same claims in court when refusing to turn over information to defendants, which results in freshly-caught criminals being put back on the streets -- something that certainly doesn't make the public any safer.

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Filed Under: canada, evidence, imsi catcher, mafia, montreal mafia, stingray

40 Comments

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Jordan Chandler, 4 Apr 2017 @ 9:32am

Montreal
I'm from Montreal originally. I don't get why they let them go; in the event they use the Stingray again in the future, it will just be a repeat situation.
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Anonymous Coward, 4 Apr 2017 @ 9:48am

Re: Montreal
In the United States, when this happens, it is because the Court gave prosecutors a binary choice: document to the Court's satisfaction how the investigation collected evidence, or the Court will declare the inadequately documented evidence to be inadmissible. The prosecutors recognize that they are unlikely to prevail without the use of the evidence, so that choice can be restated as: document to the Court's satisfaction, or drop the case. The obvious pro-public-safety choice is to provide the documentation. The prosecution elected to let alleged violent criminals go free rather than document the evidence.

Yes, this will happen again if the law enforcement uses Stingrays again and again chooses not to document to the Court's satisfaction. However, prosecutors are likely gambling on some combination of saving factors:
- Some courts may permit the introduction of undocumented evidence.
- The police might next time collect adequate admissible evidence without the Stingray. (In some cases, this means not just that the collected evidence was not collected by the Stingray, but that the Court must be convinced that, even if the Stingray had not been used, the government still would have found this other evidence.)
- Even if both those fail and every such case gets tossed out, prosecutors face no substantial sanction for this stunt, and they did manage to imprison the accused for months (sometimes years) on, effectively, no demonstrable legal basis.
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Jordan Chandler, 4 Apr 2017 @ 9:51am

Re: Re: Montreal
Thank you so much for your clear and extensive response.
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Anonymous Coward, 4 Apr 2017 @ 9:58am

Stingray has it roots in a military requirement. The military are interested what the enemy is up to full stop, and not just when they are in range of a spoof cell tower. Phones have this baseband processor, which could be reprogrammed without changing anything that the user processor can see or test.
Does stingray simply tell the phone to route via a relay that can record all phone use therafter, so that it can be monitored when out of range of the stingray? That would make stingrays much more intrusive than the police claim, and be a good reason for not reveling how they actually work.
The hint is there in what they have just revealed about tapping in to blackberry communications, they insert themselves between sender and receiver.

This may be conspiracy, theory, but why would they rather let people walk free, instead of revealing details. This does not make sense, s the criminals know that mobile phones are not safe, but still continue to use them.
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Anonymous Coward, 4 Apr 2017 @ 9:59am

Re: Montreal
Two words - parallel construction.

While keeping the alleged Mafiosi penned up temporarily, the cops hope to find some way to falsify some evidence that will stand up in court without revealing the use of the stingrays.

To be dead clear - the cops hope to come up with a convincing lie before Hizzoner says "cut 'em loose."
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Shy Guy (profile), 4 Apr 2017 @ 10:01am

What I wonder is what are the Stingray devices used if not for catching criminals? Because if they are letting them go before providing documentation, then it possibly means they are doing something else with the collected information, and they believe that's more important than finding someone that infringes the law.
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Anonymous Coward, 4 Apr 2017 @ 10:13am

Maybe they don't really care about revealing info about Stingray devices but they end up letting criminals go because they know that the case they build because of the device wouldn't be able to used in court, and that they have no case without it?
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That One Guy (profile), 4 Apr 2017 @ 10:18am

Wrong two words
Call it what it is if you would, 'Evidence Laundering'.

Much like taking 'tainted' money and running it through legitimate transactions to make it look like it came from legal sources is considered money laundering, evidence laundering is taking 'tainted' evidence and then coming up with legal ways they could have gotten it.
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That One Guy (profile), 4 Apr 2017 @ 10:23am

Telling priorities
That they're willing to let accused criminals go rather than provide documentation showing how they acquired the evidence against them would seem to make clear that said methods are not legal despite claims to the contrary, or at least wouldn't hold up under legal scrutiny, and that for all their 'we need to use stingrays to catch criminals and protect the public' they prioritize 'protecting' their ability to use stingrays more than catching criminals or protecting the public.
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Shy Guy (profile), 4 Apr 2017 @ 10:32am

Re:
But if they can't use it in the case, why use it at all? Maybe they are doing something else with it, or they just have to try justificating their adquisition, which could also be an option.
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Roger Strong (profile), 4 Apr 2017 @ 10:46am

Re:
What I wonder is what are the Stingray devices used if not for catching criminals?

Just yesterday evening the main story on the CBC News site was that someone was using multiple Stingray devices around the Parliament Hill / Embassy area of Ottawa. A check of the Washington DC area in 2015 found signs of at least 18 of them in use in two days.

So the two obvious targets:
- Foreign diplomats
- Federal politicians and lobbyists
Either to prevent crimes (including espionage), or to pressure/influence those caught doing something wrong or embarrassing.

Perhaps Michael Flynn or Sergey Kislyak can comment.
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Jeff Rivett (profile), 4 Apr 2017 @ 10:49am

I don't get it
If they're not willing to talk about the methods they used, and that means the accused go free, what good are those methods? Why bother with them at all if they can never produce results?
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discordian_eris (profile), 4 Apr 2017 @ 10:56am

Hmmmm. Sounds like they've been consulting with the FBI on the 'proper' use of #$%^(!)(.*

*Name redacted due to NDA
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Anonymous Coward, 4 Apr 2017 @ 11:00am

Re: Re:
Do find out what is actually going on so they have a place to look that would get them real evidence that can be used?
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Shy Guy (profile), 4 Apr 2017 @ 11:01am

Re: I don't get it
I think it's giving a different kind of results. Please see Roger Strong's comment. In addition, it shows that while you will not be charged for a crime, you will be found.
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Shy Guy (profile), 4 Apr 2017 @ 11:02am

Re: Re:
Thanks, nice response.
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I.T. Guy, 4 Apr 2017 @ 11:03am

So in order to catch bad guys you have to do illegal, secret things that let the bad guys go.

and all they say is; Eh, fuhgeddaboudit.

So the next person that gets killed or whatever from these guys you have the RCMP to thank and hold accountable. Good luck.
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bob, 4 Apr 2017 @ 11:20am

those canadians :)
Always being nice to everyone, even the Mafia.
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bob, 4 Apr 2017 @ 11:23am

Re: Telling priorities
Yep because they know that even if they did present the methods and evidence in court it would probably be ruled inadmissible and the accused would go free anyway.
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Anonymous Coward, 4 Apr 2017 @ 11:28am

Re: Wrong two words
I like to call it corruption court.

If a judge cannot readily see what is going on then they make it clear they have no intention of serving honorably. Who needs a dishonorable judge? Certainly not the innocent.
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orbitalinsertion (profile), 4 Apr 2017 @ 11:46am

Re:
Or keep doing it until people become accustomed to it, and the next person killed / terrorist attack means the can whine about how they need more intrusive abilities, and you need less rights, in order for them to catch criminals and save lives. Rinse, repeat.
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Anonymous Coward, 4 Apr 2017 @ 12:05pm

Re: Re: Wrong two words
Evidence laundering seems appropriate to me.

As for judges, do not be too hasty to assume dishonor and malice where mere ignorance will suffice. Judges are trained in the law, not in the intricacies of technology. Lawyers have a duty of candor to the court, so it is not, in principle, unreasonable for the judge to expect that the lawyers will not try this sort of unethical move. Yes, it would be great for defendants if the judge started every session by challenging every decision made by the prosecution and demanding that the prosecution justify all of its actions in detail. That would also be very time consuming, and quickly become tedious. It may unfortunately be necessary in some jurisdictions where the prosecutors have a history of failing in their duty of candor, but that does not mean all judges will immediately become aware of this necessity and begin enforcing it.
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Anonymous Coward, 4 Apr 2017 @ 12:15pm

Re: Re: Re:

Do find out what is actually going on so they have a place to look that would get them real evidence that can be used?

If that evidence requires a warrant to obtain, then either they lose the supporting evidence for lack of a warrant, or they obtain a warrant on false pretenses (and risk having it declared void), or they obtain a warrant while being truthful (which they have demonstrated they want to avoid).

If the evidence can be obtained without a warrant, the situation is less clear. In some situations, even if no warrant was required, the government will need to present a reasonable argument that it would have found the evidence even if it had not conducted the challenged surveillance. (For example, if they find a dead body in a place that it's reasonably likely somebody would have reported it sooner or later, that's likely permissible, even if they found it sooner rather than later because of the challenged surveillance. On the other hand, if they find the body in a place so well-concealed that it's unlikely anyone would have found it for many years, that might be successfully challenged.)

Although not reliably enforced, there is a general principle that the prosecution cannot admit evidence that it was only able to procure due to illegal conduct by government agents. In this regard, the prosecution's refusal to demonstrate that the evidence was lawfully obtained creates the appearance (whether or not true) that the evidence was not lawfully obtained, and therefore ought to be barred. This principle is also why police work so hard to avoid understanding the law, so that the "good faith exception" can excuse their failure to follow the law.
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Tin-Foil-Hat, 4 Apr 2017 @ 12:17pm

Expected
Canada has even less desire to enforce laws than the US. They almost never jail drug users there. It's fucking insane in the US that locks people up whether they victimize others or not. But in Camada it sucks to have criminals stealing from you over and over and the cops don't give a shit. This is just more of the same but with worse criminals and a more corrupt incentive.
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Anonymous Coward, 4 Apr 2017 @ 12:20pm

Re:
ahh.. no nda here.

Harris corporation.

there ya go.
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Anonymous Coward, 4 Apr 2017 @ 12:21pm

Protecting criminals for the purpose of protecting other criminals.
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Roger Strong (profile), 4 Apr 2017 @ 12:40pm

Re: Re:
Update: RCMP, CSIS launch investigations into phone spying on Parliament Hill after CBC story

Both agencies say it wasn't them using the IMSI catchers.
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Ryunosuke (profile), 4 Apr 2017 @ 12:40pm

I have to question the effectiveness of stingray devices, if they are ultimately getting tossed out of court anyway.
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Anonymous Coward, 4 Apr 2017 @ 12:59pm

Fight club
First rule of BlackBerry interception methods: don't talk about BlackBerry interception methods.
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Ninja (profile), 4 Apr 2017 @ 1:02pm

Re: Re: Montreal
"Even if both those fail and every such case gets tossed out, prosecutors face no substantial sanction for this stunt, and they did manage to imprison the accused for months (sometimes years) on, effectively, no demonstrable legal basis."

By then the damage has been done if you got the wrong person either by accident or on purpose. Of course the system is broken but the people inside are not better if they are abusing it.
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Anonymous Coward, 4 Apr 2017 @ 1:06pm

Re:
Much of the time the evidence gathered won't get thrown out, due to a technique called "parallel construction", wherein they lie about how they acquired the evidence. If the lie is believable, then they get to use it. Bruce Schneier has discussed this on his blog:
https://www.schneier.com/blog/archives/2013/09/the_limitations.html
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Mononymous Tim (profile), 4 Apr 2017 @ 1:38pm

I say it's Blackberry's fault ..for still existing.
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AnonCow, 4 Apr 2017 @ 1:44pm

Legal repercussions
Doesn't this expose the government to lawsuits for wrongful prosecution or false arrest? If the RCMP knew that this information either a.) could not legally be used or b.) would not be used by the RCMP and therefore the charges would eventually by dismissed, could the defendants sue?

How can the RCMNP arrest someone knowing full well that they will eventually drop the charges?
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DannyB (profile), 4 Apr 2017 @ 1:46pm

Re: Telling priorities
There may be a different reason to keep Stingray secret.

Once subject to scrutiny in court, I suspect there are secrets in how it works that somebody does not want to be exposed.

I don't think it is necessarily something illegal, but something that if generally known would enable any weekend electronics hacker to break into the mobile communications networks.

Maybe secret keys or credentials. Or maybe some security mechanism designed in the late 1980s isn't secure enough for the 21st century -- but changing it everywhere takes years. It's not like doing a simple Linux software update.

The fact that they prefer to let criminals go free -- in multiple jurisdictions -- even in multiple NATIONS says a lot. There is something so secret in stingray that it transcends national governments. I suspect it is a technical secret.
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Anonymous Coward, 4 Apr 2017 @ 2:24pm

Re: Legal repercussions
So the mafia (even the Canadian mafia) is going to sue the government? I don't think so.
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Anonymous Coward, 4 Apr 2017 @ 5:13pm

Legalize ALL drugs. If someone wants whatever, bad or really bad, let them have it. Sell it, Tax it and that's it. Most all of the drug crimes will go away. Why would you want to buy drugs from some thug on the corner in the bad part of town when you can go to the drug store and tell them exactly what you want and they hand it right over to you. Give the warnings if need be. No doctors note even.

I can buy all the alcohol I want but rarely drink. I smokes some marijuana in the past. Even back in High School, and drank also. I have self control. Look at all the crime that was going on when Alcohol was illegal. It was just as bad and yet the police and politicians where right there in the hidden clubs drinking with everyone else. It didn't work then for Alcohol, it's not working on drugs. The war on drugs has done far more harm to people. Innocent people have been killed by the police and SWAT, going to the wrong house or wrong info and the person living there ends up shot and killed.

There's a whole industry for the Police and Jail system created for the whole war on drugs. How about the police doing things that really matter and hurt other people, not themselves. Say catching Murderer's, and Theft, Home robbery car theft. Crimes done to others. All the huge piles of money wasted on the drug war can be used for things that really matter, and help those that really have a drug problem that can't help themselves. A program, not JAIL!!!
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Digitari, 4 Apr 2017 @ 5:15pm

I believe...
the new legal term for use of stingray devices is "incidental collection" "we did not mean to capture your cell phone, you just happened to use your phone when in an area the stingray was operational"
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BernardoVerda (profile), 4 Apr 2017 @ 9:31pm

Re: Re: Montreal
In other words:

"We won't take these Organised Crime mobsters to Court to answer for their crimes
-- because then they'll find out how we caught them."

Well, I've got news -- they're going to figure it out, anyhow.

- - -

So now, in an attempt to postpone the inevitable, they've created a new breed of "Untouchables" -- the sophisticated criminals who are known to have committed certain crimes, but are effectively protected from from prosecution, anyways, simply because the "justice system" is more concerned with protecting its own secrets, than with actually getting the job done.
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BernardoVerda (profile), 4 Apr 2017 @ 9:41pm

Re: Re: I don't get it
If I'm part of Organized Crime, aren't I already "found"?

And in that case, I'm not caring what people in Law Enforcement "know" and have certain evidence for, if that doesn't mean the system is prepared to try me and put me in prison over it, even with that evidence at hand.
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Anonymous Coward, 5 Apr 2017 @ 6:07am

I can buy all the alcohol I want but rarely drink. I smokes some marijuana in the past. Even back in High School, and drank also. I have self control. Look at all the crime that was going on when Alcohol was illegal.

Laws are not passed for you then. Other people don't have your self control. Crime was going on in Chicago during prohibition, and crime continued to go on after prohibition. You can remove the profits from drugs (except they would still enforce the "unlicensed" selling of drugs) but that doesn't mean crime stops.
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