Preventing Deceptive Communications with Electors
3. Investigation Challenges
In order to understand the rationale for the recommendations made in this report, particularly those involving legislative changes, it is essential to provide an overview of 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. Some of these challenges are unavoidable, especially as regards the current state of the technology. Others are reported more to give an idea of the complexity of the investigation and the inherent delays in obtaining the evidence required to take enforcement measures than for the purpose of changing the regime. Still, a number of improvements to the legislative framework could be made to facilitate the investigative process.
A. Lack of contractual information on local and national campaigns
Current limits to the degree of mandatory reporting to Elections Canada
The data contained in the election expenses returns filed by political parties is currently very limited and does not include specific information, such as contracted communications or telemarketing services, that could provide guidance to an investigation. While party returns include details on the contributions received, parties' election expenses are grouped into broad categories, and the return provides no or little breakdown about how these expenses were incurred. This is something Elections Canada intends to remedy before the next general election. More importantly, however, under current legislation, federal political parties are not required to submit any supporting document in relation to their expenses, nor can such documentation be requested of them.Footnote 45
By comparison, candidates' returns and accompanying documentation are more complete and may show that a telemarketing firm was retained for making calls to electors. However, 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 Canada Elections Act.Footnote 46 Moreover, as candidates' campaign returns need not be filed until four months after polling day (section 451), any information contained in the returns regarding arrangements with service providers may arrive too late to be of any significant assistance to an investigation.
The cases Elections Canada has investigated seem to indicate that major parties deal with their own stable of telemarketing firms. Candidates' campaigns gain access to these firms through referrals by the party. However, while invoices from the party may be submitted with the candidates' campaign returns, the Act does not require that these returns also include the original contracts entered into with telemarketing firms regarding the services to be provided by the firms, when and at what cost. As such, little if anything is known from the returns about the specific services rendered by telemarketing firms, to either political parties or candidates.
B. Technological means to prevent traceability or identification
Current technology offers several ways by which persons 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.Footnote 47
Anonymity can also be facilitated through the use of proxy servers that function as an intermediary between the originator of a message and its intended destination when communicating over the Internet. Proxy servers are websites that provide anonymity by appearing as the originating communicator when communicating with the intended destination. In the investigation of the Guelph matter, court documents filed by the Commissioner of Canada Elections indicate that the information regarding the true originator was kept by the proxy server for only a short period of time, thus allowing the originator to communicate anonymously with the voice broadcasting vendor.
Disposable cell phones
Disposable cell phones can be used to prevent the identification of a caller. There are also applications that allow cell phone users to create temporary telephone numbers that can be used, both for calls and text messaging, without leaving a trace. In the Guelph investigation, court documents filed by the Commissioner indicate that a disposable cell phone was used to communicate with a voice broadcasting vendor under a false identity.
C. Limitations with Criminal Code means of obtaining information
Threshold to be met to obtain a production order
The Criminal Code allows investigators to obtain a search warrant or a production order from a judge to compel individuals or entities to provide or produce certain documents or data in their possession to the investigator. Production orders are used as a less intrusive alternative to search warrants, under appropriate circumstances. Under subsection 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 committed. The informant 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. Thus, an investigation must have made significant progress and solid evidence must exist before a production order can be sought from the courts.
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 telephone number). Some keep this information for only a few days, others for three months or longer. The length of time for which data is retained directly impacts the ability to obtain information during the investigation.
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. As well, it is often necessary to go through the process of drafting an ITO, obtaining an order and receiving documents in response a number of times to pursue a given trail. That said, the chain of events and communications leading to a robocall may be very difficult, if not impossible, to establish where a company retains telecommunications records only for a very short period.
Inability to compel testimony
Individuals who are not suspected of wrongdoing often have relevant information that could assist in determining whether the Canada Elections Act has been contravened and shed light on the circumstances of the contravention. Often, their collaboration is critical at the early stages of an investigation. However, experience demonstrates that, for a number of reasons, these individuals may refuse to collaborate with investigators, or they may only agree to do so after considerable efforts and delays that may result in the loss of key evidence.
For example, in the case of the Guelph investigation into misleading robocalls, the publicly available court records show that at least three individuals believed to have key information refused to speak with investigators. The inability to compel testimony has been one of the most significant obstacles to effective enforcement of the Act.
Return to source of Footnote 45 In the 2010 recommendations report, the Chief Electoral Officer recommended that he or she be able to request that registered political parties provide any documents and information that may, in the Chief Electoral Officer's opinion, be necessary for verifying that the party and its chief agent have complied with the requirements of the Act with respect to the election expenses return. See Responding to Changing Needs – Recommendations from the Chief Electoral Officer of Canada Following the 40th General Election, recommendation II.1.
Return to source of Footnote 46 The Act allows the Chief Electoral Officer to request additional documentation in support of the expense. As a general rule, the contents of an advertisement are not relevant for that purpose.
Return to source of Footnote 47 However, it should be noted that 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.