"Robocall" Judgment - A Victory For The Conservative Party?

Conservative spokespeople have been making the rounds claiming the decision in the "robocall" vote suppression case vindicated them and was a clear victory for the Conservatives. (Actually, the calls were both live and recorded, so "robocall" is a bit of a misnomer.) 

While the case ultimately decided that the election results should not be overturned, it was hardly the unsullied victory the Conservatives want Canadians to believe.

First of all, in his decision released May 23, 2013, Federal Court Mr. Justice Mosley made a finding that "it has been established that misleading calls about the locations of polling stations were made to electors in ridings across the country, including the subject ridings, and that the purpose of those calls was to suppress the votes of electors who had indicated their voting preference in response to earlier voter identification calls." [p.88] 

He also points out that the calls "appear to have been targetted towards voters who had previously expressed a preference for an opposition party (or anyone other than the government party)..." [p. 92]  That statement alone makes it clear who was the only group supposed to benefit from the calls - the Conservative Party.

This, the court determined, was fraud: "I find that the threshold to establish that fraud occurred has been met by the applicants." [p. 88] 

Mr. Justice Mosley also determined that "the most likely source of the information used to make the misleading calls was the CIMS database maintained and controlled by the CPC, accessed for that purpose by a person or persons currently unknown to this Court." [p. 88]

Over a year ago I wrote about the CIMS database and the collection of non-supporter voter information and how this could only have come from Conservative campaign canvass information collection.

The Conservative claim to victory in the current case is in several findings by the judge. First, the judge said "There is no evidence to indicate that the use of the CIMS database in this manner was approved or condoned by the CPC. Rather the evidence points to elaborate efforts to conceal the identity of those accessing the database and arranging for the calls to be made." [p. 88]

The Conservatives are portraying this to mean that they have been cleared of any involvement in the voter-suppression calls. In fact, it means the "elaborate efforts to conceal the identity of those accessing the database and arranging for the calls to be made" successfully left no evidence of who made them. It's not exoneration - it is merely the absence of evidence. 

The Conservatives would like you to think that a finding of "no evidence" is the same as innocence. It isn't, especially when read together with the previous finding that "the evidence points to elaborate efforts to conceal the identity" of the perpetrators. The judge is saying we don't know who did it because they covered their tracks well.

After finding the conduct of person or persons unknown using the super-secure Conservative CIMS database to direct the voter suppression calls was fraud, Mr. Justice Mosley found that there was no available evidence (mostly, he says, due to the nature of the crime) that the voter suppression campaign had an impact on the election's outcome. He called it "thin and widespread". For that reason - essentially because it could not be proved that it was effective, although the applicants introduced polling data that suggested it could have been - he declined to overturn the election results.

That is a victory for the sitting Conservative MPs, if not for the integrity of our electoral process - something Mr. Justice Mosley expresses concern for and notes is the subject of an ongoing investigation.

Mr. Justice Mosley also affirms, by denying the Conservative motions to dismiss the case due to delay or because the Council of Canadians was partially funding the litigation ("champerty"), that the court will generously uphold the right of citizens to defend the integrity of our fundamental right to expect free, fair and clean elections regardless of technical arguments. [pp.44-48]

However, Mr. Justice Mosley kept his harshest comments about the conduct of the case by the Conservative Party of Canada and the respondent Conservative MPs for the end, when he made his ruling on costs.

COSTS

The costs award and the reasons are nothing less than a public, pants-down spanking of the Conservatives and their counsel from a normally very reserved Federal Court.

In determining who should pay the costs of the case, the judge reviewed the conduct of the parties. He used the strongest judicial language to express his extreme displeasure with the Conservative respondents' conduct. It is worth looking at those paragraphs in whole:

[261] These proceedings have had partisan overtones from the outset. That was particularly evident in the submissions of the respondent MPs. In reviewing the procedural history and the evidence and considering the arguments advanced by the parties at the hearing, it has seemed to me that the applicants sought to achieve and hold the high ground of promoting the integrity of the electoral process while the respondent MPs engaged in trench warfare in an effort to prevent this case from coming to a hearing on the merits.
 
[262] Despite the obvious public interest in getting to the bottom of the allegations, the CPC made little effort to assist with the investigation at the outset despite early requests. I note that counsel for the CPC was informed while the election was taking place that the calls about polling station changes were improper. While it was begrudgingly conceded during oral argument that what occurred was “absolutely outrageous”, the record indicates that the stance taken by the respondent MPs from the outset was to block these proceedings by any means.
 
[263] The preliminary stages were marked by numerous objections to the evidence adduced by the applicants. The respondent MPs sought to strike the applications on the ground that they were frivolous and vexatious, to have them dismissed as champertous and to require excessive security for costs, in transparent attempts to derail this case. 

As to the costs of the case itself - who pays for the long and costly legal proceedings - the judge made his displeasure with the Conservative MPs and Conservative Party keenly felt.

He wrote: 

[260] I am mindful of the fact that in this instance the applicants have received guarantees of indemnification by a non-governmental organization which has been raising funds for that purpose. But it is also apparent that the respondent MPs are supported by the resources of the party to which they belong, resources which are underwritten by taxpayers. 

Justice Mosley begins by awarding the Applicants their costs for the numerous and time consuming pre-trial motions:

"The applicants are, in my view, entitled to be awarded costs on each of the pre-hearing motions in which they have been successful on a solicitor and client basis to be paid jointly and severally by the respondent MPs. This applies also to the champerty motion and the motion to exclude the Graves evidence which was brought initially in relation to the Don Valley East application and then deemed to apply to each of the other applications." [p. 94]

These motions likely make up the bulk of the time and cost of the action. This is where the big money in legal fees probably is. Most importantly, the judge awards these costs on a scale called "solicitor and client". That means actual costs paid by the applicants to their lawyers, which is the most expensive and punitive scale available. Usually costs are awarded on a lesser "party and party scale". 

Almost always costs go to the winner of a case, but not this time. Mr. Justice Mosley explains that there is a public interest involved, but he also makes it abundantly clear he was penalizing the Conservatives with costs for their combative and obstructionist conduct of the case.

On the respondent MPs' costs, he says: "Apart from the motion costs, and with the above considerations in mind, I am inclined to order a modest fixed amount for the costs of the hearing." He emphasizes the word "modest", as in, don't expect much. No soup for you.

As for any other respondents who opposed the application, the judge orders them to pay their own costs.  

So, a victory for the Conservatives? Yes. Their MPs get to keep their seats, and in the end that's all they care about.   

But we have a legal finding that the 2011 General Election was in fact marred by fraud; that the source of the fraud was likely the Conservative Party's CIMS; that whomever committed the fraud went to great lengths to cover their tracks; and that the Conservative Party and its representatives will go to great lengths to "block these proceedings by any means" and "derail" justice.  

So, a victory? Only if you don't count a judicial finding of election fraud, a scathing indictment of the Conservatives from the Federal Court that reveals their low opinion of justice and democracy, and the way they do business.  

Read the complete 95-page judgment here: http://www.documentcloud.org/documents/703627-t-619-12-en.html  

The "Robocall" smoking gun

The "robocall" voter suppression fraud has all the elements of a Scooby-Doo mystery, but the same principles apply in looking at the evidence to figure out if the guilty party is really a sea monster or Old Man Johnson in a rubber mask.

Having worked in an IT shop for a while and with automated election systems, there are several questions I noticed need to be asked.

The so-called robocall centre is a Voice Over IP system (VOIP) that can send out tens of thousands of calls an hour from a server through the Internet to phones anywhere. It makes the calls simultaneously like a bulk email.

To use it you need only a few simple things:

1) An account with an Internet service provider that has the specialized robocall software

2) An uploaded list of target phone numbers from a database or spreadsheet

3) A recorded message, called in from a phone anywhere

An account with an ISP needs several things. You have to sign up for the service, which means providing email confirmation, contact data and, most importantly, payment. Emails can be set up from any number of anonymous sites, like Hotmail or Gmail, but even they leave traces, like what IP addresses you log in from. Anyone who works in the IT world can make it very hard to trace an email by using proxy servers designed to mask where you are.

Payment is more difficult, especially when paying for expensive campaigns like the robocalls. Paying for all the alleged robocalls at once would be an expensive proposition, and multiple small payments increase contact and risk of identity detection. Online payments for Internet services are generally by credit card or PayPal. We know PayPal's records have been requested by Elections Canada. PayPal is serious about not being a source of money laundering, and so is careful about identifying users of their services.

We have heard that a pre-paid credit card has been used to pay for the cell phone used to make the recorded message for the robocalls. It is safe to assume it was used to make PayPal payments too. PayPal will also log IP addresses for transactions, which would have to be disguised as well.

Many ISP services are completely automated and self-serve, although you would think some human IT hands would be involved in a provider of primarily sensitive political call services, at least in the verification of accounts. If this was piggybacked on an existing client's account, the passwords and access would have to be very tightly controlled.

If "Pierre Poutine" used an existing Conservative robocall account, you would expect this would be a very short investigation. Few people would have the passwords let alone the authority to access the account.

Robocall accounts do several things. They not just make the calls, but they provide users with detailed lists of when calls were made, how many we're connected and even how long people listened to them. This is important for legitimate businesses to know if their calls are going through and effective. These reports are either available to download through the website or are emailed to the user. Again, each interaction with the robocall server produces an IP log.

That brings us to the lists themselves.

If the fraudulent robocalls were targeted specifically at Non-Conservative voters, that list had to come from somewhere. It is hardly worth addressing the idea that the Liberals made these calls as Dean Del Mastro has said repeatedly. There is no sense in telling your own voters the wrong voting location, especially when the calls came from a highly politicized company that works almost exclusively for conservative parties.

I have explained below the only place these lists of non-conservative voters - many of whom were apparently elderly - could come from. An opponent's marked riding canvass list is the only reasonable place to collect this information. But that means to get it into a robocall database it has to be matched with local phone numbers and uploaded into a master database.

Ridings maintain their own local databases of "marked lists" of voters, so there has to be a central plan to collect non-Conservative voter data from ridings and individual polls that might "swing" with only a slim margin of votes. We know the robocalls were made to multiple swing ridings, so there was a coordinated effort. This required an overview of what was needed to win not just polls or ridings, but the election. In the compartmentalized world of the Conservative Party, this could only be the central campaign.

Having worked with databases of delegate and other lists, cleaning a list is a massive undertaking. Hardly the work of one person in a short time.

There were a number of different targeted ridings and polls. When the phone message was uploaded to the server for the robocalls, it had to be recording in multiple versions, as each polls was different, and to be believable each message had to be specific to the calling location. There is no point in telling a voter that their poll has been moved to a different riding, since it won't be believed. You need local intelligence of what to record in the 30 or so robo-messages so that their change in polling location is at least semi-believable with a riding-specific address. Not a small undertaking without local assistance in each riding and a central repository for the data. That local assistance has to be coordinated, at least enough to centrally record and upload the couple of dozen different voice messages tailored for each poll and riding deemed important enough to break the law and sway the outcome of an election.

The pattern of deception - throw-away cell phones paid for by cash-purchased credit cards, etc. - show the people behind the voter suppression fraud knew what they were doing was highly illegal and went to great efforts to not get caught.

Looking at each of these elements, it is also clear this is not the work of a rogue or lone gunman. The technology is a closely guarded "political super weapon" of the Conservatives, and not something most would be familiar with or have access to during the vital last days of what appeared to be a desperate last ditch bid for a Conservative majority. It requires a large number of man-hours and resources, money and access to the campaign-enhanced voter records of a couple dozen ridings. This isn't a prank Twitter account - it is a sophisticated attempt to use cutting edge technology to subvert democracy.

It doesn't take Scooby-Doo or Mystery Inc. to see why this could only happen as part of a carefully coordinated plan.

How to discourage the elderly from voting

There are discussions going on about how would it be possible to organize a voter suppression campaign aimed primarily at the elderly. I thought I’d set out some of the mechanics of a modern campaign that would make it possible to do so.

I’ve done door to door campaigning in elections going back to the late 1970s and as recently as 2011. Campaigning has changed a great deal since then, and technology now lets you use information you collect in ways never dreamed of back then.

All parties collect voter information. It is essential for identifying your supporters to get out the vote (GOTV) on election day, as well as recording sign locations and potential donors. The Conservative Party has been in the forefront of collecting and using voter data using methods perfected in the United States. It has been used by them to effectively out-fundraise the other parties and mobilize supporters at and between elections. The idea of the "perpetual campaign" has been embraced by all parties, particularly the CPC.

At election time, parties are given access to voters lists by Elections Canada, which has basic data including name, address and poll number. These used to be paper lists, but are now available as spreadsheets or databases. Parties collect additional voter data to supplement these lists by merging it with available phone data to produce call lists. Call lists are used to collect further voter identification data through phone banks or outsourced call centers.

At election time, door to door canvasses are organized by candidates in each riding. The purpose is to establish candidate presence, get lawn sign locations and identify supporters. Trained canvassers will also identify hot button issues and questions for follow up, potential swing voters who could be persuaded to vote for you, or potential donors and volunteers. Canvassers produce “marked lists” that are returned to the campaign office and entered into the master database.

Most parties are almost exclusively interested in collecting detailed information about their own supporters and are content to mark supporters of other parties only by their affiliation as a kind of rough straw poll and to make sure they do not waste their time and resources on them.

But the consultants that have advised the Conservative Party have reportedly expressed that a successful party is not only interested in collecting not just details about their own supporters, but also details about supporters of other parties, as is done in the United States. There is nothing illegal about that. It is however open to abuse.

For example, if an unscrupulous campaign has decided to pursue a program of voter suppression (tricking or manipulating the other parties’ supporters into not voting) instead of just identifying your supporters to get them to vote in maximum numbers of election day, the information collected about opposing voters can be used against them.

For example, if the most easily dissuaded groups of voters are considered to be elderly or immigrants, an effort is made to identify them through call centers and door to door canvassing. Information can be gathered through phoney “polls”, directing requests for support, the presence of lawn signs or the canvass. Useful personal details (“Liberal / elderly”) are recording into the database.

In the case of the recent “robocall” controversy, a subset of the data could be uploaded to an automated call centre that singles out only those voter records marked “Liberal / elderly” in the database, and an automated call goes out to them to divert them on election day to a false poll location. Individuals are singled out on the basis of being the most easily “suppressed” from voting, such as the elderly with mobility issues or those more likely to accept an official-sounding call that may be misrepresented as coming from an official (ie: non-partisan) source.

Before technology it was not unheard of for voters to get a call on election day supposedly from the campaign they support telling them: “We’re going to win so you don’t need to bother to vote. Thanks for your support.” Of course the call came from an opposing candidate’s campaign and was an attempt at voter suppression. Some people don’t need much of an excuse to stay home on election day.

None of this is to say that this is what happened in Election 41 - that has yet to be seen - but this is the possible mechanics behind how it could have happened, and how easily a particular group such as seniors could have been identified and targetted for voter suppression techniques.

And shame on anyone who would attempt it.

See Toronto Star article March 9, 2012 here