Prison guard sues Ottawa for ‘illegal’ surveillance


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

A prison guard is suing federal authorities, alleging his corrections career was ruined after government officials used a machine known as the IMSI sensor that indiscriminately captured cell phone text messages.

In Canada, police and federal authorities use the devices to track the locations of phones or to eavesdrop during investigations. But the machines – also known as cell site simulators – work like mini communications towers, picking up data from every cell phone within a radius.

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

In 2015, the director of the medium-security institution in Warkworth, Ontario wanted a new tool to crack down on smuggled inmate phones.

But the IMSI receiver deployed at the penitentiary also intercepted the messages exchanged by the guards.

“I want to make sure this doesn’t happen again,” Suss told The Globe and Mail. The wrongful dismissal lawsuit he filed in Federal Court on October 19 indicates that CSC intercepted exchanges that falsely suspected him of facilitating illegal activities among inmates and prompted the prison administration to move him. to another job, which eventually led him to stop working. .

CSC “violated the complainant’s privacy, causing him foreseeable emotional harm and distress,” the lawsuit said. He maintains that the directors of the penitentiary “were illegally using a machine that they knew, or should have known, would illegally intercept the complainant’s phone.” The lawsuit also states that this led to the “wrongful dismissal of the applicant from his job”.

The fact that Warkworth Institution deployed an IMSI sensor in 2015 has already garnered public attention. Investigations by police and privacy officials concluded that surveillance laws were likely broken, but no one was held accountable.

Federal Corrections said in those reviews that they were not to blame for the intercepted messages because they used a hired contractor who was only responsible for finding phones and not intercepting anyone’s messages.

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

The CSC spokesperson said the penitentiary closed the program when it learned of the privacy breaches and the federal department had not used the technology since. “When it was brought to our attention that certain personal information from a cell phone of our staff had been unintentionally intercepted by the use of this device, the institution immediately stopped using the technology,” he said. -he declares. “This was in 2015, and the cell site simulator has not been used since.”

He did not respond to questions about the allegations in Mr. Suss’ trial, including his argument that the interceptions prompted CSC managers to initiate workplace investigations and disciplinary action that interrupted at wrong his career.

Tamir Israel, a lawyer at the University of Ottawa‘s Public Interest Clinic, said court-ordered civil damages could be one of the few practical ways to limit inappropriate state oversight.

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

He added that “I think we need to start looking at what protections we can put in place to empower users of these tools. “

He said the government’s use of such machines is almost always surreptitious, which means few people can argue with it. “There is a small loophole in accountability,” Israel said. “The government decided to use this tool – so the government is unlikely to blame itself for Criminal Code violations. “

Parliament passed a law in the 1970s to prevent eavesdropping. Police need judicial consent for conventional wiretapping. Authorities should also publish statistics on wiretapping and disclose their activities to individual targets after investigations.

New generation devices such as IMSI sensors are found in gray areas. Police have sometimes admitted to using the machines without seeking a judicial warrant.

Previously released documents show the contractor and his machine were brought to Warkworth to carry out “radio traffic surveys” that could identify cell phones used by prisoners. Within months, the director shut down the program and told the prison guards in an email that their voice and text communications had been inadvertently captured.

A note summarizing a 2017 OPP investigation says officers found the machine “likely illegally intercepted” communications, including at least six text messages. But the OPP did not lay charges because a conviction was unlikely.

In 2018, Federal Privacy Commissioner Daniel Therrien held CSC accountable for oversight. He concluded that this was probably in breach of the Privacy Act. Such tickets are not punished.

Mr Therrien’s 2018 review report says the improper interceptions revealed to prison authorities “the identities of two staff members.”

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

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

The follow-up review by Mr. Therrien’s office found that surveillance did not necessarily stay inside the prison, given the range of the IMSI sensor. He added that it is likely that no one will ever know the full extent of invasive surveillance.

“CSC has stated that it has no plans to use cell site simulators in the future,” the follow-up privacy review states.

Mr Suss’s lawsuit says he was bullied and harassed over suspicion of the interceptions. The complaint states that Mr Suss was sent home for months in 2015 and 2016 and then assigned to a new role “isolated from other staff”. Eventually, according to the lawsuit, CSC officials put him on long-term leave.

The lawsuit claims that the CSC offered Mr. Suss a retirement package amounting to five years’ salary which required him to “not disclose any information about the interceptions.” The claim says he was in a hurry to accept it.

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

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