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December 6, 2010

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Law Times • December 6, 2010 NEWS PAGE 3 Wireless companies' data policies under scrutiny BY RON STANG For Law Times WINDSOR — A mistrial in a Windsor murder case could have national implications for wire- less providers, particularly Telus Communications Co., on the is- sue of complying with orders to make customer cellphone data available to the courts. On trial was Kenyatta O'Neil Brown, 29, over the July 2009 stabbing death of Nicholas In- gram, 24, in a parking lot at the Leopard's Lounge strip club. Th e trial was into its fi fth day late last month when a lawyer for Telus, Scott Hutchison, told Superior Court the company had learned there was additional information on seven witnesses' cellphone records that it didn't originally release after receiving a court order last August. Telus spokesman Shawn Hall calls it an "unintentional oversight." "Very recently, [we] learned that we may have held a small amount of individual informa- tion in physical background tapes beyond the 30 to 59 days that we typically keep customer records before purging them," he says. "Th at was not turned up in the fi rst search." Th e company also keeps backup tapes containing im- mense amounts of data for a couple of years for "systems recovery" in the event of emer- gency or disaster, he adds. "It's a standard practice that all tele- communications companies have. And the data in the tapes is measured in terabytes. Th ey're huge. And they're not really in- tended for this purpose." Now, however, in addition to the Windsor case, Telus must go back and comb for in- formation it may have missed in numerous other court re- quests. Th e company receives thousands of such orders yearly, Hall notes. "Th ey would range from wiretap requests through to requests for phone records, information about text mes- sages, the whole gamut." "It's unclear at this time exactly what or how much additional information we will be able to turn up," he says, noting Telus is developing new technology "that would allow us to go back in and ferret out the specifi c pieces of information." Hall points out that the com- pany, which has a staff of 20 people working full time on re- trieving such information, found the additional evidence during routine security checks. It will be turned over to the court at the end of January. A new trial has been scheduled for April. Th e defendant's lawyer, Maria Carroccia, brought the motion for mistrial over the re- cords, some of which relate to Crown witnesses who had Te- lus pay-as-you-go accounts. According to Carroccia, some of them were at the scene of the murder while others were in diff erent locations but were affi liated with the defendant or A new third edition of "THE" real estate lawyers' guide to section 50 of the Planning Act Order your copy today Hardbound • Approx. 450 pp. January 2011 • $139 P/C 1002010000 ISBN 978-0-88804-514-0 the evidentiary process can be. "Information that appears on its face to be reliable often turns out not to be," he says. "I think it just goes to show how very careful everybody has to be when dealing with the criminal process." Windsor criminal lawyer The new cellphone evidence could benefit either the defence or Crown, says Maria Carroccia. the deceased. She agrees the new evidence could cut both ways in terms of benefi ting either her client's or the Crown's case. "Absolutely, we don't know," she says. While available voice mail evidence reveals only when a call was made and how long the parties talked, there's critical in- formation in text messages. "Th e actual content of the texts was maintained and is printed out," Carroccia says. "Th e phone calls themselves aren't recorded." "It may aff ect other cases," she adds, noting she's unsure whether it could reopen them. "Potentially, I don't know. But there would have to be some demonstration that that would have made a diff erence." Andras Schreck, a vice presi- dent of the Criminal Lawyers' Association, says Telus "has to be commended" for coming forward with the new informa- tion. But he notes the case is an- other example of "how fragile" Patrick Ducharme, who lec- tures on criminal procedure and trial advocacy at the University of Windsor Faculty of Law, also cautioned about how wide a net the courts can cast on gather- ing data and suggests a recent Supreme Court of Canada deci- sion could have bearing. Th e case, R. v. Morelli, deals with unreasonable search and seizure as it relates to personal computers. "Say they're inves- tigating somebody having to do with pornography and they go and grab the guy's com- puter," Ducharme says. "A lot of times, what they do is they freeze the hard drive and then they go back through every aspect of the guy's life. Th ey look at his fi nances; they look at his e-mails; they look at his contacts; they look at any type of inappropriate conduct. And they end up charging the person with lots of other of- fences because, once they have the computer, they can be ex- tremely intrusive. So the [top court] said they have to be very directed." David Fewer, director of the Canadian Internet Policy and Public Interest Clinic at the University of Ottawa, has seri- ous concerns about the length of time Telus was holding onto the tapes. "Th ere's no legitimate need to keep this kind of infor- mation around this long," he ntitled-2 1 says, noting it's "a data breach issue waiting to happen." Fewer also says it was "a bit disturbing to learn that Telus wasn't aware that it was keep- ing data in this way." Requests for comment from other cellphone companies were unsuccessful. But Marc Choma, spokesman for the Canadian Wireless Telecom- munications Association, says the industry "has a long his- tory" of working co-operatively with law enforcement within the legal framework for access to communications and sub- scriber information. Choma adds that wireless pro- viders also "respect and protect" personal information but comply with lawful requests "as permitted by privacy legislation." Meanwhile, there are three bills before Parliament that would increase providers' legal obligations. 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