Law Times

Law Times • may 16, 2016 Page 9 www.lawtimesnews.com Privacy debate over police access to cellphone records BY MARG. BRUINEMAN For Law Times A recent Ontario deci- sion provides telecom- munications compa- nies with some direc- tion on what they should do when police request records on users whose cellphones are con- nected to specific communica- tions towers. But lawyers say the law in this area is still evolving as courts, and perhaps legislators, attempt to balance individual privacy rights with the degree of access of the information law enforce- ment should have in conduct- ing investigations and fighting crime. Timothy Banks, Dentons Canada LLP's leader of global privacy and cybersecurity prac- tice, sees the pressures coming from two fronts. It's slowly com- ing into the public conscious- ness through news coverage and court cases. But there is also a breaking point for companies on the receiving end of broad orders from enforcement agen- cies. It's a point of legal interest for everyone because through the orders the cell data from thou- sands of users can be accessed by law enforcement agencies without the users' knowledge, he says. Mobile phones are serviced by wireless networks through antennas mounted on towers. A record is created every time the phone is used, identifying the towers involved. Each tower covers a 10- to 25-kilometre radius in the country, and less than two in the city, and its re- cords can reveal the general lo- cation of the user. "It is an area of law that is developing and it is developing because by little bits and pieces it's coming more to the public consciousness," says Banks. "There is a breaking point I think for organizations receiv- ing very broad requirements to produce data from law enforce- ment agencies. The costs re- sponding to these requests are significant enough or intrusive enough that the organization feels it has to respond" to try to narrow it down, he says. In R. v. Rogers Communi- cations, Peel Regional Police obtained production orders for cell data in their investigation into a string of jewelry store rob- beries. They wanted to identify people using their cellphones in the area of each store around the time of the robberies. The orders required the name, address, and billing in- formation, including credit card information, for every subscrib- er communicating through sev- eral Rogers and Telus towers. Telus figured its searches would include at least 9,000 people while Rogers estimated it would have to do 378 searches to get about 200,000 records for about 34,000 people. The companies indicated they had complied with thou- sands of orders dating back to 1985 and for Telus this one was the most extensive. Justice John Sproat of the Ontario Superior Court of Jus- tice agreed that the production orders authorized unreasonable searches, breaching the Charter rights of Rogers and Telus sub- scribers. "The starting point is that if the police and the issuing jus- tice focus on the statutory re- quirements and the principle of minimal intrusion, the resul- tant production order will be no more extensive or onerous than is reasonably necessary in order to investigate the crime in ques- tion. Further the police, and therefore, the issuing justice, will only have a very general and perhaps inaccurate conception of how much personal informa- tion will be captured by a partic- ular production order and how much effort will be required to comply with the order. To ask the issuing justice to speculate as to how onerous it would be to comply with a requested order, and impose a cap on that basis, would be arbitrary and contrary to the best interests of the ad- ministration of justice," wrote Sproat. In the decision, Sproat lays out guidelines that police should include in the information to obtain production orders with direction that issuing justices be aware of them as well. "The irony of this is that over 99 per cent of individuals in the cell data that are produced are completely innocent. They're not suspects in any offences at all," says Martin Kratz, a part- ner with Bennett Jones LLP in Calgary, where he leads the in- tellectual property practice. "Telus and Rogers . . . ob- jected to the breadth of the or- der and they're in the position of having to comply with these court orders and are concerned about their privacy obligations to their subscribers. So this is re- ally a test case." The court found this pro- duction order was overly broad and didn't satisfy the consti- tutional protection of reason- able expectation of privacy. Al- though the decision was really moot because police withdrew that order and went for a much more tailored order, the case does identify the constitutional limitations and moderates these broad orders, says Kratz. "I think this is very much an element of ongoing debate. The question of the extent to which the state can carry out surveil- lance very broadly is a topic of interest in Europe, in the United States, in Canada, and many other countries," says Kratz. Toronto criminal lawyer Graham Clark says this decision shows the importance of "the pipes through which all this f lows. "It's really all about an ongo- ing development, too; it's not the last time we're going to hear about this." While the Rogers decision ex- plores new ground, Clark points out that Justice Sproat relied on pre-existing legislation: the Personal Information Protec- tion and Electronic Documents Act, and s. 492.2 of the Crimi- nal Code, as well as judicial law, R v. Vu, in which the Supreme Court of Canada found that the expectation of privacy in a per- sonal computer, which includes cellphones, is even higher than the expectation of privacy in the personal home. And even though at issue was the privacy rights of 43,000 peo- ple all told, it was private com- panies faced with the costly task of producing the information that raised the argument. Quite possibly, all those people af- fected would never have known that their private and banking information could have ended up in the hands of police had it not come to court. "This goes to what Char- ter litigation is about and how Charter issues protect people," says Clark. And, unlike most situations in which Charter rights are in- voked, the Rogers challenge was raised before anyone's privacy rights had been impacted. "So this case is extraordi- nary in that sense. This is a case where before acting on the judi- cial order that was received, the company went to a higher court and said: 'Whoa, maybe this shouldn't be happening.' But that's extraordinarily rare," says Clark. He expects that this decision will hold very persuasive au- thority and that it could lead to binding law. Indeed, the Office of the Pri- vacy Commissioner says it has been interested in the issue of law enforcement obtaining in- formation from telecommuni- cations service providers. And it identified "government surveil- lance" as a key priority area. "I can tell you that we were pleased with the recent R. v. Rogers Communications deci- sion, where the Superior Court of Ontario ruled that Canadians have a reasonable expectation of privacy in their cellphone records," says Valerie Lawton, manager for strategic commu- nications for the office. "Police should ensure that the requests they make to ac- cess personal information relate directly to the crimes they are investigating. If the approach is overly broad and police cast too wide a net, clearly this would have a very negative impact on the rights of many law-abiding citizens." The privacy office's position has been that there needs to be evidence of a higher probability of wrongdoing before informa- tion about an individual's private communications or their digital activities are compelled. LT FOCUS Timothy Banks says the law is evolving when it comes to what happens with police access to records on cellphones con- nected to specific towers. Course Leader Glenn Tait, Partner, McLennan Ross LLP NWT Safety Regulations: A New Regime for Employers & Employees FULLY ACCREDITED IN-CLASS PROGRAM & LIVE WEBINAR Yellowknife, June 9 • Webinar, June 9 DON'T MISS OUT ON REGISTRATION To register and learn more visit www.lexpert.ca/cpdcentre THE LEGAL ROAD TO WORKPLACE SAFETY REPORTING OBLIGATIONS | FIRST AID REQUIREMENTS | OHS COMMITTEES Untitled-1 1 2016-05-11 1:29 PM Police should ensure that the requests they make to access personal information relate directly to the crimes they are investigating. Valerie Lawton

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