Meng Wanzhou’s electronic devices were ‘gateway’ to her private information, lawyer argues

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It's been more than two years since China detained Michael Spavor and Michael Kovrig, in what many deem a retaliatory move for Canada's arrest of Huawei CFO Meng Wanzhou on behalf of the U.S. Ahead of the two Michaels' trials, David Akin explains why Prime Minister Justin Trudeau refuses to trade Meng for the men's freedom, and what Ottawa is doing to try to help the pair – Mar 18, 2021

Serial numbers associated with Huawei executive Meng Wanzhou’s electronic devices were a “gateway” to her private information and were improperly obtained by the RCMP to appease the United States, one of her lawyers said Friday.

Scott Fenton accused a Mountie of collecting the numbers through an unauthorized search after the Federal Bureau of Investigation asked for them.

“The theme that runs through this is: If the FBI make a bare request, the RCMP are only too pleased to jump and satisfy that request” without regard for Meng’s charter rights, he said.

Fenton made the accusations during a hearing in the B.C. Supreme Court over whether Meng was subjected to an abuse of process and her extradition proceedings should be stayed.

Arguments in the extradition case are expected to conclude in May.

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Meng was arrested at Vancouver’s airport on Dec. 1, 2018, to face fraud charges in the United States related to economic sanctions against Iran that both she and Huawei deny. Her electronic devices were seized and stored in an RCMP evidence locker.

Court has heard evidence that days later, an FBI agent asked the RCMP for a list of the electronic serial numbers, makes and models of the devices for the purpose of entering a request for them through a legal channel known as a Mutual Legal Assistance Treaty.

Const. Gurvinder Dhaliwal, who was tasked with overseeing the exhibits, took photos of the devices and collected serial numbers, including the phone SIM cards and international mobile equipment identity number, court heard.

Fenton said those numbers have the potential to unlock other “highly meaningful” information.

In an agreed statement of facts, the Crown and defence agree that law enforcement can use the mobile equipment identity number to seek a warrant or other form of compulsory order to obtain user information, such as stored emails, photos and contacts.

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“Meng had an expectation of privacy,” Fenton said.

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The numbers were also unnecessary to the FBI’s request for the devices under the legal assistance treaty, and the request could have been entered with more vague descriptions like “thumb drive,” he said.

Lawyers for Canada’s attorney general have not yet responded in court, but in court documents they say there is no evidence to suggest the U.S. sought the information for any purpose other than to particularize the request under the treaty.

The FBI agent entered the request after another senior RCMP officer advised him that was the information needed, the Crown says.

“The request for information by (the FBI agent) was legitimate and well within the bounds of police-to-police information sharing recognized by the Supreme Court as essential to combating transnational crime,” it says.

Fenton argued that the “unprecedented” refusal to testify by the now-retired senior RCMP officer who acted as a go-between for the FBI and Dhaliwal only complicates matters. Staff Sgt. Ben Chang’s failure to appear in court means there is no direct evidence that the numbers were ultimately passed to the FBI, Fenton said.

The final email correspondence asks Dhaliwal to share the numbers with another officer and says “we will take care of forwarding them information” so they can apply for the devices.

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“That is where the email chain stops,” he said.

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He urged the court to make the “reasonable inference” that the numbers were sent.

The Crown counters that a second request made by the FBI agent to a new RCMP officer weeks later indicates the device numbers had never been shared.

“Why would the FBI seek this information in an MLAT request if they already had received it from the RCMP?” the Crown asks.

Even if the court decides the numbers were never shared, the way they were gathered was improper, Fenton said.

By opening the exhibit bags and collecting the numbers, Dhaliwal conducted a new search of the devices that Fenton said he didn’t have the authorization to do.

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