Prison officer sues Ottawa for ‘illegal’ surveillance

Kurt Suss, a correctional office on long-term leave, on 26 October.Fred Lum / The Globe and Mail

A prison guard is suing federal authorities alleging that his career in corrections was ruined after government officials used a machine known as an IMSI prisoner who arbitrarily captured cell phone text messages.

In Canada, police and federal authorities use the devices to track phone locations or eavesdrop on investigations. But the machines – also known as mobile site simulators – act as mini-communication towers and pull in data from all mobile phones within a radius.

Federal prison guard Kurt Suss, 62, claims in a new lawsuit that the Correctional Service of Canada (CSC) used such techniques illegally.

In 2015, the chief of security at Ontario’s medium security, the Warkworth Institution, wanted a new tool to crack down on smugglers’ phones.

But the IMSI prisoner, who was deployed in the penitentiary, also intercepted messages exchanged by guards.

“I want to make sure it doesn’t happen again,” he said. Suss to The Globe and Mail. The wrongful dismissal case he filed in federal court on Oct. 19 says the CSC intercepted exchanges that wrongfully placed him on suspicion of facilitating illegal activity among inmates and caused the prison administration to move him to another job, which led to , that he eventually stopped working. .

The CSC “violated the plaintiff’s privacy, inflicted on him predictable emotional harm and distress,” the lawsuit states. It claims that the officers of the probation service “illegally operated a machine which they knew, or should have known, would illegally intercept the plaintiff’s telephone.” The case also states that this led to “unlawful dismissal of plaintiff from his employment.”

The fact that the Warkworth Institution deployed an IMSI prisoner in 2015 has become public attention before. Investigations by police and privacy officials concluded that surveillance laws were likely violated, but no one has been held accountable.

The federal correction department has said during these reviews that it is not to blame for the intercepted messages because it used a hired contractor who was only tasked with finding phones and not intercepting anyone’s messages.

“The CSC has not participated in any illegal surveillance,” spokesman Pierre Deveau said in a statement when asked about the trial.

The CSC spokesman said the probation service closed the program as it became aware of privacy breaches, and the federal department has not used the technology since. “When it was pointed out that some personal information from one of our employees’ mobile phones was inadvertently intercepted using this device, the institution immediately stopped using the technology,” he said. “This was in 2015, and the cell site simulator has not been used since.”

He did not answer questions about the allegations in Mr. Suss’ lawsuit, including his argument that the wiretaps prompted CSC executives to launch workplace investigations and disciplinary action that erroneously shortened his career.

Tamir Israel, a lawyer employed at the University of Ottawa Clinic of Public Interest, said civil damages claims could be one of the few practical ways to limit improper state surveillance.

“This is a new reason,” said Mr. Israel, co-author of a 2016 report on the use of the IMSI catcher.

He added that “I think we need to start looking at what protections we can have in place to hold users of these tools accountable.”

He said the government’s use of such machines is almost always hidden, meaning few people can challenge it. “There’s a bit of a liability loophole,” Mr. Israel. “The government has decided to use this tool – and therefore it is unlikely that the government will go after itself for violations of the penal code.”

Parliament passed legislation in the 1970s to prevent overly invasive wiretapping. The police need a judicial permit for conventional telephone tapping. The authorities must also publish statistics on wiretapping and disclose their activities to individual targets following investigations.

Next-generation devices such as IMSI catchers sit in gray areas. Police have at times admitted to using the machines without seeking court orders.

Previously released records show the contractor and his machine were brought to Warkworth to conduct “radio traffic surveys” that could identify cell phones used by prisoners. Within months, the chief of guards shut down the program and told prison guards in an email that their voice and text communications were accidentally caught.

A memo summarizing an investigation by the Ontario Provincial Police in 2017 says officers found the machine “probably illegally intercepted” communications – including at least six text messages. But the OPP did not raise charges because a conviction was unlikely.

In 2018, Federal Privacy Commissioner Daniel Therrien held CSC in charge of surveillance. He concluded that it was probably in violation of the Privacy Act. Such violations do not carry any sanctions.

The report on Mr. Therrien’s review in 2018 says the inappropriate wiretapping revealed to prison officers “the identity of two employees.”

One of the identities was a nickname for Mr. Suss, who confirmed this through his own complaints to the Federal Privacy Commissioner.

In August 2021, the Office’s follow-up review of privacy concluded that Mr. Suss’ complaints were “well-founded” and that the prison surveillance activities “constitute a serious and alarming strand of personal privacy.”

The follow-up review from Mr. Therrien’s office noted that surveillance did not necessarily remain inside the jail given the reach of the IMSI detainee. It added that it is likely that no one will ever know the full extent of the invasive surveillance.

“CSC has claimed that it does not intend to use cell site simulators in the future,” says the follow-up privacy review.

Mr. Suss’ trial says he was bullied and harassed as a result of suspicions raised by the wiretaps. The allegation says that Mr. Suss was sent home for several months in 2015 and 2016, and then assigned a new role “isolated from other employees.” Eventually, the case says, CSC officials put him on a long-term leave.

The case alleges that CSC offered Mr. Suss filed a five-year salary package that required him not to “disclose any information about the interceptions.” The claim said he was pressured to accept it.

In an interview, Mr. Suss that he hopes for a public justification. If that happens, “I think I’ll be able to go with my head held high,” he said. “I want to go back and shake hands and say ‘I’m retired’.”

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