Discussion Paper: Issues Arising from Improper Telecommunications with Electors
3. Investigation Challenges
This part of the paper describes some of the challenges faced by Elections Canada's investigators in their search for the source of the improper calls made during the last general election.
- No written contracts for telemarketing or other communications with electors
The cases Elections Canada investigated seem to indicate that major parties deal with their own stable of telemarketing firms. Contacts within these firms appear to be shared with candidates' campaigns. While there are invoices, there is generally no evidence of written contracts between campaigns and telemarketing firms for what services are to be provided by the firms, when and at what cost.
- Current limits to the degree of compelled reporting to Elections Canada
The data contained in the returns filed by political parties is currently too limited for any relevant information to be gleaned from them. Indeed, party returns only include details on the contributions received. Parties' election expenses are regrouped in broad categories, and the return provides no or little breakdown about how these expenses were incurred. Under current legislation, political parties at the federal level are not required to submit any evidence in support of their expenses.
While candidates' returns and accompanying documentation are more complete and may show that a telemarketing firm was retained for making live or automated calls to electors, the purpose for which the firm was retained and the text of the messages communicated to electors is not available as part of the return since the reporting of this information is not required under the CEA.Footnote 18
Furthermore, if a return does not indicate that the campaign retained the services of a telemarketing or telecommunications firm to communicate with electors, or if the expense was not for election advertising (e.g. calls to get out the vote) and is reported in the less-detailed return of the electoral district association, the agency would not know that expenses have been incurred for that purpose except through other channels: complaints, denunciations, etc.
Finally, any information contained in the returns regarding arrangements with service providers may arrive too late to be of any significant assistance to an investigation.
- Technological means of anonymity
Current technology offers several ways by which individuals who do not want to comply with the rules can escape detection. This means that, even where there are applicable legislative or regulatory requirements such as the CRTC's Unsolicited Telecommunications Rules, these requirements can in practice be evaded using various technological means of anonymity. The solution to these problems may be more in the advancement of technology than in the introduction of new rules.
Voice over Internet Protocol technology
- The current state of the technology allows callers to hide the origin of a call by causing a fake number to appear on the recipient's call display ("spoofing"). This limits the ability for VoIP calls to be traced back to the caller.
- The technology has so evolved that it is possible to set up a VoIP call centre from almost anywhere, including a home, with a newer computer, some servers and access to call lists.
- That being said, the system used in the case of Guelph was that of an existing, known voice broadcasting vendor that kept its own records of calls made and has co-operated with investigators.
- Anonymity can also be facilitated through the use of proxy servers that function as an intermediary for computers and servers communicating over the Internet. Proxy servers provide anonymity by automatically cleansing their records of originating communications.
- In the investigation of the Guelph matter, Court documents filed by the Commissioner of Canada Elections indicate that proxy servers were used to communicate with the voice broadcasting vendor under a false identity.
Disposable cell phones
- Disposable cell phones can be used to hide the origin of a communication. There are also applications that allow iPhone users to create disposable telephone numbers that can be used, both for calls and text messaging, without a trace.
- In the same investigation, Court documents filed by the Commissioner specify that a disposable cell phone was used to communicate with a voice broadcasting vendor under a false identity.
- The lack of industry standards in the data retention policies of telecommunications companies
There are no industry standards on the type of telecommunications records to be kept, nor on their retention time. Some companies keep no records on telecommunications unless billing is required. Others keep records on all telecommunications made by users (e.g. date the call was made, duration, recipient's phone number). Some keep this information for only a few days, others for three months. The length of time for which data is retained directly impacts the ability to investigate.
The Criminal Code allows investigators to obtain a production order from a judge to compel individuals or entities to provide or produce certain documents in their possession to the investigator. Production orders are used as a less intrusive alternative to search warrants, under appropriate circumstances. Under s. 487.012(3), the order will not be granted unless the informant (in Elections Canada's case, the investigator) can show that he or she has reasonable grounds to believe that an offence has been or is suspected to have been committed.
The drafting of the supporting information (called an Information to Obtain, or "ITO") required to convince a judge to issue a production order, the issuance of the requested order by the judge and the waiting for the actual production of the documents by their holder may take weeks or months, depending on the progress of the investigation and the complexity of the matter. The chain of events and of communications may be very difficult, if not impossible, to establish where a company retains telecommunications records only for a very short period.
- The threshold to be met to obtain a production order
As stated above, for a production order to be issued, investigators must show that they have reasonable grounds to believe that an offence was committed or is suspected to have been committed. They must also have reasonable grounds to believe that the documents or data sought will provide evidence respecting the commission of the offence and that the person who is the subject of the order has possession or control of the documents or data. Where complaints are based on the memory of witnesses or after-the-fact suspicion, the information may be insufficient as a basis for a production order to obtain evidence from a telecommunications firm.
- The public nature of an Information to Obtain
Once a judge grants a production order, a document is subsequently filed with the judge reporting on the information obtained. At that point, the ITO (that is, the document drafted by investigators to explain why they need the information and why they believe it is in the possession of the specified person or entity) becomes a public document.
It is the discovery of one of these ITOs by Ottawa Citizen reporters that led to the influx of complaints and reactions in February 2012. However, through the publication of the contents of the ITOs, the reputation of individuals and entities may have been negatively impacted even though the ITOs did not suggest that these persons or entities were a party to any wrongdoing.
Footnote 18 The Act allows the CEO to request additional documentation in support of the expense. As a general rule, the contents of an advertisement are not relevant for that purpose.