Tuesday, January 26, 2016

Ontario court explicitly adopts new privacy tort: public disclosure of private facts

For anyone who was wondering: the arc of the common law is long and it bends towards privacy. The Ontario Superior Court of Justice has this past week expressly recognized the tort of "public disclosure of private facts".

This is a huge deal, as it explicitly expands the scope of privacy protection under the common law and stands as an example of how the traditional courts (and perhaps new-ish torts) can be called upon to help victims of cyberbullying.

Arising from a horrific case of revenge porn where the defendant had uploaded to the internet an explicit sexual video of the plaintiff, the Court in Doe v D., 2016 ONSC 541 (CanLII) [Edit: try this version -- I understand that CanLII may have inadvertently published some details contrary to the publication ban], said this about the ability to sue for invasion of privacy:

C. Invasion of Privacy

[34] In Jones v. Tsige, 2012 ONCA 32 (CanLII), the Court of Appeal for Ontario recognized the existence of the tort of invasion of privacy in the context of intrusion upon seclusion. In that case, the Court found that the defendant had committed the tort of intrusion upon seclusion when she used her position as bank employee to repeatedly examine private banking records of her spouse's ex-wife. While that case dealt with a significantly different fact situation, many of the Court’s comments are germane to this case, and I will therefore refer extensively to that decision.

[35] To begin with, the Court noted (at para. 15) that “[t]he question of whether the common law should recognize a cause of action in tort for invasion of privacy has been debated for the past one hundred and twenty years. Aspects of privacy have long been protected by causes of action such as breach of confidence, defamation, breach of copyright, nuisance and various property rights. Although the individual's privacy interest is a fundamental value underlying such claims, the recognition of a distinct right of action for breach of privacy remains uncertain.”

[36] The Court went on to recognize as authoritative a seminal American legal article on the subject by William L. Prosser, "Privacy" (1960), 48 Cal. L. Rev., noting that “Prosser argued that what had emerged from the hundreds of cases he canvassed was not one tort, but four, tied together by a common theme and name, but comprising different elements and protecting different interests. Prosser delineated a four-tort catalogue, summarized as follows, at p. 389:

1. Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs.

2. Public disclosure of embarrassing private facts about the plaintiff.

3. Publicity which places the plaintiff in a false light in the public eye.

4. Appropriation, for the defendant's advantage, of the plaintiff's name or likeness. “

[37] The Court also noted (at para. 19) that “[t]he tort that is most relevant to this case, the tort of ‘intrusion upon seclusion’, is described by the Restatement [Restatement (Second) of Torts (2010)], at 652B as: ‘One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.’”

[38] The Court went on to note (at para. 20) that “[t]he comment section of the Restatement elaborates this proposition and explains that the tort includes physical intrusions into private places as well as listening or looking, with or without mechanical aids, into the plaintiff's private affairs. Of particular relevance to this appeal is the observation that other non-physical forms of investigation or examination into private concerns may be actionable. These include opening private and personal mail or examining a private bank account, ‘even though there is no publication or other use of any kind’ of the information obtained.’” The Court commented that if the plaintiff in Jones had a right of action, it fell into the first category of intrusion upon seclusion, described by Prosser as comprised of the following elements:

• there must be something in the nature of prying or intrusion;

• the intrusion must be something which would be offensive or objectionable to a reasonable person;

• the thing into which there is prying or intrusion must be, and be entitled to be, private; and

• the interest protected by this branch of the tort is primarily a mental one. It has been useful chiefly to fill in the gaps left by trespass, nuisance, the intentional infliction of mental distress, and whatever remedies there may be for the invasion of constitutional rights.

[39] Later in its reasons, when considering the desirability of recognizing the tort of intrusion upon seclusion, the Court made a number of comments that are relevant to the issues in this case, including the following:

39 Charter jurisprudence identifies privacy as being worthy of constitutional protection and integral to an individual's relationship with the rest of society and the state. The Supreme Court of Canada has consistently interpreted the Charter's s. 8 protection against unreasonable search and seizure as protecting the underlying right to privacy. In Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, [1984] S.C.R. No. 36, at pp. 158-59 S.C.R., [page254] Dickson J. adopted the purposive method of Charter interpretation and observed that the interests engaged by s. 8 are not simply an extension of the concept of trespass, but rather are grounded in an independent right to privacy held by all citizens.

43 In Hill v. Church of Scientology of Toronto 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, Cory J. observed, at para. 121, that the right to privacy has been accorded constitutional protection and should be considered as a Charter value in the development of the common law tort of defamation. …

45 While the Charter does not apply to common law disputes between private individuals, the Supreme Court has acted on several occasions to develop the common law in a manner consistent with Charter values: [citations omitted].

46 The explicit recognition of a right to privacy as underlying specific Charter rights and freedoms, and the principle that the common law should be developed in a manner consistent with Charter values, supports the recognition of a civil action for damages for intrusion upon the plaintiff's seclusion ….

67 For over 100 years, technological change has motivated the legal protection of the individual's right to privacy. In modern times, the pace of technological change has accelerated exponentially. Legal scholars such as Peter Burns have written of "the pressing need to preserve 'privacy' which is being threatened by science and technology to the point of surrender": "The Law and Privacy: the Canadian Experience", at p. 1. See, also, Alan Westin, Privacy and Freedom (New York: Atheneum, 1967). The Internet and digital technology have brought an enormous change in the way we communicate and in our capacity to capture, store and retrieve information. As the facts of this case indicate, routinely kept electronic databases render our most personal financial information vulnerable. Sensitive information as to our health is similarly available, as are records of the books we have borrowed or bought, the movies we have rented or downloaded, where we have shopped, where we have travelled and the nature of our communications by cellphone, e-mail or text message.

68 It is within the capacity of the common law to evolve to respond to the problem posed by the routine collection and aggregation of highly personal information that is readily accessible in electronic form. Technological change poses a novel threat to a right of privacy that has been protected for hundreds of years by the common law under various guises and that, since 1982 and the Charter, has been recognized as a right that is integral to our social and political order.

69 Finally, and most importantly, we are presented in this case with facts that cry out for a remedy. …

[40] The passage quoted immediately above most certainly applies to the case before me.

[41] While the facts of this case bear some of the hallmarks of the tort of "intrusion upon seclusion", they more closely fall within Prosser’s second category: “Public disclosure of embarrassing private facts about the plaintiff.” That category is described by the [Restatement (Second) of Torts (2010) at 652D as follows: “One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.”

[42] The comment section of the Restatement elaborates on this proposition as follows:

Every individual has some phases of his life and his activities and some facts about himself that he does not expose to the public eye, but keeps entirely to himself or at most reveals only to his family or to close friends. Sexual relations, for example, are normally entirely private matters, as are family quarrels, many unpleasant or disgraceful or humiliating illnesses, most intimate personal letters, most details of a man's life in his home, and some of his past history that he would rather forget. When these intimate details of his life are spread before the public gaze in a manner highly offensive to the ordinary reasonable man, there is an actionable invasion of his privacy, unless the matter is one of legitimate public interest.

Although written in somewhat antiquated language, the concepts described are entirely apposite to this case. Among the illustrations offered by the Restatement is the following: “A publishes, without B's consent, a picture of B nursing her child. This is an invasion of B's privacy.”

[43] Prosser listed the features of this tort as follows:

• the disclosure of the private facts must be a public disclosure, and not a private one;

• the facts disclosed to the public must be private facts, and not public ones; and

• the matter made public must be one which would be offensive and objectionable to a reasonable man of ordinary sensibilities.

[44] Plainly, writing in 1960, Prosser was discussing events that might occur in a pre-Internet world, where the concepts of pornographic websites and cyberbullying could never have been imagined. Nevertheless, the essence of the cause of action he described is the unauthorized public disclosure of private facts relating to the plaintiff that would be considered objectionable by a reasonable person. In the electronic and Internet age in which we all now function, private information, private facts and private activities may be more and more rare, but they are no less worthy of protection. Personal and private communications and the private sharing of intimate details of persons’ lives remain essential activities of human existence and day to day living.

[45] To permit someone who has been confidentially entrusted with such details – and in particular intimate images - to intentionally reveal them to the world via the Internet, without legal recourse, would be to leave a gap in our system of remedies. I therefore would hold that such a remedy should be available in appropriate cases.

[46] I would essentially adopt as the elements of the cause of action for public disclosure of private facts the Restatement (Second) of Torts (2010) formulation, with one minor modification: One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of the other’s privacy, if the matter publicized or the act of the publication (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public. [modification shown by underlining]

[47] In the present case the defendant posted on the Internet a privately-shared and highly personal intimate video recording of the plaintiff. I find that in doing so he made public an aspect of the plaintiff’s private life. I further find that a reasonable person would find such activity, involving unauthorized public disclosure of such a video, to be highly offensive. It is readily apparent that there was no legitimate public concern in him doing so.

[48] I therefore conclude that this cause of action is made out.

Friday, January 22, 2016

Presentation: Lawyers and social media

I had the great pleasure this morning of giving a presentation to the council of the Nova Scotia Barristers Society on the use of social media by lawyers. The Society has been a very keen adopter of social media itself. Check out their presence on Facebook, Twitter, YouTube and LinkedIn.

I thought the slides may be of interest to other members of the profession, so here it is:

Monday, January 18, 2016

Tower dump case raises troubling questions about law enforcement and privacy

I blogged a couple of days ago about the important case of R v Rogers, 2016 ONSC 70 (Canadian Privacy Law Blog: Ontario court provides clear guidance on privacy and "tower dumps" in R v Rogers and Telus). You may recall that it is the decision that provides police and justices of the peace with guidance on how to formulate “tower dump” production orders in compliance with the Canadian Charter of Rights and Freedoms. This is very important for the future of the use of this investigative technique.

But I think we need to look closely at what happened that gave rise to the decision, and to carefully consider what this says about law enforcement in Canada. I see an institutional attitude that does not even consider privacy rights of Canadians and the Charter that creates them. I find this to be very troubling.

If you’ve read the decision or a summary of it, you will know that the Peel Regional Police were investigating a string of jewelry store robberies. So the Peel Police sought a series of production orders requiring telecommunications companies to deliver the records of all the cellphone towers that are in the vicinity of the crimes being investigated. But its nature, this is purely a fishing expedition. They were hoping that information about a small number of suspects was among the details of tens of thousands of Canadians uninvolved with the crime.

I am told that they got production orders against six telcos, but only two of them pushed back ultimately leading to the court hearing.

So at one point one (or more) police officers thought it was appropriate, and presumably legal, to ask for a production order that would hand him (or her) the personal information of tens of thousands of innocent people, hoping to find that there was information in there about a possible suspect. Presumably, a senior officer signed off on it. A crown prosecutor may have signed off on it, as well.

So what kind of personal information was being sought? A staggering range:

  • Names of all customers connected to the towers at the relevant times;
  • Addresses of all those customers;
  • Who all those customers were calling at the relevant times, including the names and addresses of those persons
  • Who all those customers were texting at the relevant times, including the names and addresses of those persons
  • Billing information, including credit card and bank information, of all those customers

As found by the court, they sought production of information that was entirely irrelevant to their investigation. Billing information would not be helpful at all to this investigation, but they sought it anyways.

Starting this this grossly overbroad request, which included irrelevant information, the police went to a justice of the peace who granted the order. Justices of the peace are the independent judicial officers who are supposed to ensure that intrusive orders are appropriate in the circumstance, including whether they are proportional. This one got by.

Then, when Rogers and Telus pushed back, they tried to withdraw the order in secret, tried to convince the Court that the question was now moot and the Court should not consider Rogers and Telus’ arguments about the privacy of their customers. I infer from this that the police did not want either this production order or their practices regarding “tower dumps” to be scrutinized by a superior court judge. They were caught with their hands in the privacy cookie jar.

The police sought a grossly overbroad order, which included sensitive personal information that was entirely irrelevant to their investigation. This request was presumably signed-off on by a senior officer. They managed to get a justice of the peace to approve it. The detective who testified said that the practice is to limit the request to what is “manageable and can be meaningfully reviewed.” No mention that it is limited because of privacy, proportionality or the Charter.

In court, the police and crown argued that Rogers and Telus have no standing to assert their customers’ privacy interests. The judge dismissed this. (I expect the original production order included a “gag order”, as well. I can’t think of the last time that I saw one that did not include a gag order.) The police and the crown also tried to argue that there was no search in this case that would engage the Charter. The judge dismissed this, too.

The crown also tried to put forward an absurd proposition: if faced with an over-broad production order, the burden should be on the telco to negotiate with the police to narrow it down. I have been in the position of representing companies like these telcos (but not these exact telcos) in discussions with police who are seeking access to customer information. It is really not a discussion. In no way can it be called a negotiation. Threats of obstruction and contempt are to be expected. Not surprisingly, the judge dismissed this out of hand.

Importantly, the judge said that the police have to present the justice of the peace with a constitutionally valid request. They can’t go for everything they can get and then hide behind the justice’s signature.

In this context, we need to recall that Bill C-30, when put forward to Vic Toews and supported by the law enforcement community, could have required Rogers and Telus to hand over this information without a justice of the peace ever having seen the application or the basis upon which it would be based. Recall also, that the current RCMP Commissioner is pushing for a way to go around the Charter and the R. v. Spencer decision from the Supreme Court to get access to this sort of information without judicial oversight.

As a postscript, I should be clear: I think that tower dumps should remain available to law enforcement in the appropriate circumstances. I think that the judge in this case did produce a set of guidelines that -- if followed -- will give police access to this useful tool in a manner that decreases the threat to the privacy of uninvolved persons and is consistent with the Charter.

Friday, January 15, 2016

The Digital Privacy Act: New and upcoming changes to PIPEDA

I was invited this week to present a webinar to the Conference Board of Canada's Council of Chief Privacy Officers on the current and upcoming changes to Canada's privacy law as a result of the Digital Privacy Act (Bill S-4). The changes are pretty significant so I thought it would be worthwhile to share the presentation more broadly. The materials cover most of the major changes, including enhanced consent, business transactions, data breaches, record keeping and compliance agreements.

Thursday, January 14, 2016

Ontario court provides clear guidance on privacy and "tower dumps" in R v Rogers and Telus

It is becoming clear that internet companies and telcos are the guardians of personal privacy in this connected age. We surf the internet and walk through the streets in relative anonymity, but the telcos are able to make the connections and name you for the police. For that reason, we need clear rules so that this ability is only used where it is reasonable to do so, in accord with our Charter of Rights and Freedoms.

This morning, the Ontario Superior Court released its important decision in R. v. Rogers & Telus, 2016 ONSC 70 [PDF]. (Some previous discussion is here.)This is a very important decision, which finally provides police and prosecutors with clear guidance on when and how they can obtain telco customer information through "tower dumps". In a nutshell, tower dumps are the production of all the records of a cell phone tower at a particular time. Since your mobile phone is always communicating with at least one tower, tower dumps can tell the police who is in the vicinity of a particular location at a particular time. They are really troubling or problematic because the records overwhelmingly contain information about people who have nothing to do with the underlying investigation.

The production orders obtained by the Peel Regional Police at issue were breathtakingly broad. The police were investigating a string of robberies and went to at least Telus and Rogers, looking for the following information related to cellular towers operated by them:

  • Names of all customers connected to the towers at the relevant times;
  • Addresses of all those customers;
  • Who all those customers were calling at the relevant times, including the names and addresses of those persons
  • Who all those customers were texting at the relevant times, including the names and addresses of those persons
  • Billing information, including credit card and bank information, of all those customers

Rogers asserted that complying with the order would result in the disclosure of information about 34,000 customers. Telus said their demand would involve 9,000 customers. Remember, there was probably only one suspect in all that data, so it would have given the police detailed information about approximately 43,000 people who had NOTHING TO DO WITH THE CRIME. Also note that a justice of the peace granted these orders.

Thankfully, Rogers and Telus pushed back and went to court to challenge the production orders. The police withdrew them, presumably having been caught with their hands in the proverbial cookie jar seeking a breathakingly broad order, and argued that the telcos' application was now moot and that Rogers and Telus didn't have standing to assert the privacy interests of their customers. The court disagreed and ordered a hearing, which leads us to this decision.

The court agreed with the police that tower dumps are a valuable investigative technique. A police detective described the two most common scenarios in which tower dumps are sought:

a. the police have reasonable grounds to believe that a series of crimes were committed by the same person in various locations. For example, a series of robberies with similar hallmarks. Cellular records can identify any subscribers who were in close proximity to more than one of the crime scenes.

b. the police are investigating a single incident, such as a robbery or murder, and have reasonable grounds to believe that the perpetrator used a cell phone at or near the crime scene. The names of persons accessing the cell tower(s) close to the crime scene can then be cross-referenced with other investigative leads. Other such leads might be a list of the owners of Ontario registered vehicles of the type observed leaving the crime scene or the name of a person whose DNA was found at the scene.

The court framed the issues under review as (a) whether there is a reasonable expectation of privacy in the records at issue, (b) do Rogers and Telus have standing to assert their customers' privacy interests, (c) were the production orders overly broad? Did they thus infringe s. 8 of the Charter and what's the appropriate declaration, and (d) what guidance to the police and justices of the peace are appropriate?

Do users have a reasonable expectation of privacy in the cell phone records (including banking information)?

With respect to "reasonable expectation of privacy", the Court said it's a matter of common sense:

[19] Common sense indicates that Canadians have a reasonable expectation of privacy in the records of their cellular telephone activity. Whether and when someone chooses to contact a divorce lawyer, a suicide prevention hot line, a business competitor or a rehabilitation clinic obviously implicates privacy concerns. The location of a person at a particular time also, raises privacy concerns. Was the person at the Blue Jays game instead of at work?

[20] Admittedly this type of information is in the vast majority of cases innocuous. It remains that in a number of cases it will be quite sensitive. It is also not tenable to reason that since only the police will be in possession of this information any sensitive information will never see the light of day. One needs only read a daily newspaper to be aware of the fact that governments and large corporations, presumably with state of the art computer systems, are frequently "hacked" resulting in confidential information being stolen and sometimes posted on-line.

[21] I appreciate that cell phone data is not right up there with Wikileaks and Ashley Madison in terms of information likely to be hacked and published. It remains that it is information Canadians certainly regard as private. The law supports this conclusion.


[23] The Criminal Code, s. 492.2, requires judicial authorization, on a "reasonable grounds to suspect" standard, to install transmission data recorders, which can capture the telephone numbers of persons sending and receiving communications. This supports the conclusion that there is a reasonable expectation of privacy in this information.


[31] In my opinion the statutes and caselaw align with common sense. Canadians have a reasonable expectation of privacy in their cell phone records.

Do Telus and Rogers have standing to assert their customers' privacy interests

Perhaps not surprisingly, the crown argued that Telus and Rogers have no standing to argue in favour of their customers. And given that the production order likely contained a gag order, the natural result of that would be that nobody can argue for the 43,000 people whose information was implicated. The Court disagreed and notably came to the conclusion that they may have a contractual obligation to stand up for their customers:

[37] The choice is stark. There is an issue concerning the privacy rights of hundreds of thousands of Canadians. If Rogers and Telus are correct, this legal issue can and will be addressed with opposing points of view put forward by counsel. A decision on point can provide guidance to the police and issuing justices. If the Respondent is correct, this legal issue will never be addressed and some justices of the peace will continue to grant similar production orders which, as I will later explain, are overly broad and unconstitutional.

[38] To my mind the choice is clear. Rogers and Telus have standing to assert the privacy interests of their subscribers and are contractually obligated to do so.

Breadth of the production orders

The Court had little trouble concluding that the production orders, described above, were too broad and thus violated s. 8 of the Charter:

[41] The "minimal intrusion" principle embodied in s. 8 was described by Mr. Chan in Morelli and Beyond: Thinking about Constitutional Standards for Computer Searches, the Criminal Lawyers Association Newsletter, vol. 33, No. 2, as follows:
The animating policy is that the state must always be alive to the privacy interests of the individual and must always infringe such interests as little as possible.

[42] The issuing justice did not have the benefit of the evidence before me and the legal submissions of counsel. With that benefit, I have no hesitation in finding that the Production Orders were overly broad and that they infringed s. 8 of the Charter. The disclosure of personal information the Production Orders required went far beyond what was reasonably necessary to gather evidence concerning the commission of the crimes under investigation. For example, the Production Orders:

a) required production of information relating not only to the cell phone subscriber proximate to the crime scene but also the personal information and location of the other party to the call who may have been hundreds or thousands of miles removed from the crime scene;

b) required production of bank and credit card information which, if it had any relevance at all in locating an individual, could have been sought in a follow-up application for a small number of actual suspects (i.e.) a person whose cell phone was proximate to multiple crime locations; and

c) required production of personal information pertaining to over 40,000 subscribers when all the police were really interested in was information, which could have been provided in a report, listing the few individuals, if any, utilizing a cell phone proximate to more than one robbery location.

[43] I, therefore, make the requested declaration that the Production Orders authorized unreasonable searches and so breached the s. 8 Charter rights of the Rogers and Telus subscribers. As the Production Orders have been revoked nothing would be gained by addressing the further issue of whether the Production Orders also violated the rights of Rogers and Telus.

Interestingly (and shockingly, in my view), the Crown argued that the cure for an overly broad order is for the police and the telco to negotiate it down. The Court had little regard for this and I agree. Telcos like Rogers and Telus should only be asked to respond to legal (meaning constitutionally valid) production orders. And having advised clients regarding broad production orders myself, the police will never give you information that substantiates the breadth of the request.

Guidance for police and justices of the peace

The heart of the decision and the portion that will hopefully have a far-reaching and lasting impact, are the guidelines produced by the Court to be followed by the police and justices of the peace. In my view, it hits just the right balance between the clear public interest in having the police investigate crimes with the appropriate tools while respecting the privacy of those whose information is implicated.

Guidelines for police

[65] The police should include in the information to obtain a production order:

a) One — a statement or explanation that demonstrates that the officer seeking the production order is aware of the principles of incrementalism and minimal intrusion and has tailored the requested order with that in mind. — An awareness of the Charter requirements is obviously essential to ensure that production orders are focused and Charter compliant.

b) Two — an explanation as to why all of the named locations or cell towers, and all of the requested dates and time parameters, are relevant to the investigation. — This obviously flows from what is now the s. 487.014(2)(b) Criminal Code requirement that there be reasonable grounds to believe that the documents or data requested will afford evidence respecting the commission of the offence.

c) Three — an explanation as to why all of the types of records sought are relevant. - For example, the Production Orders sought bank and credit card information, and information as to name and location of the party to the telephone call or text communication who was not proximate to the robbery location. This information was clearly irrelevant to the police investigation.

d) Four — any other details or parameters which might permit the target of the production order to conduct a narrower search and produce fewer records. — For example, if the evidence indicates that a robber made a series of calls lasting less than one minute this detail might permit the target of the order to narrow the search and reduce the number of records to be produced. If the evidence indicates that the robber only made telephone calls then there may be no grounds to request records of text messages. (Although the use of voice recognition software may make it difficult to distinguish between a person making a telephone call and a person dictating a text message.)

e) Five — a request for a report based on specified data instead of a request for the underlying data itself. — For example, in this case a report on which telephone numbers utilized towers proximate to multiple robbery locations would contain identifying information concerning only a small number of robbery suspects and not the personal information of more than 40,000 subscribers which the Production Orders sought. This would avoid the concern expressed by Mr. Hutchison that 99.9% of vast amounts of tower dump personal information relates to individuals who are not actually suspects.

f) Six — If there is a request for the underlying data there should be a justification for that request. — In other words, there should be an explanation why the underlying data is required and why a report based on that data will not suffice.

g) Seven — confirmation that the types and amounts of data that are requested can be meaningfully reviewed. — If the previous guidelines have been followed the production order should be focused which will minimize the possibility of an order to produce unmanageable amounts of data. This confirmation does, however, provide an additional assurance of Charter compliance.

Guidelines for Issuing Justices

[66] The guidelines for issuing justices flow from the guidelines for police. Issuing justices should generally insist upon the police providing the information, confirmations and explanations outlined in the Guidelines for Police. Doing so will focus the scope of the production order and ensure that production orders conform to both the requirements of the Criminal Code and the dictates of the Charter.

I think this is ultimately a very important decision that pulls tower dump production orders out of the shadows, shines the light on abusive and overly-broad orders and has led to very sensible, balanced rules to be followed by the police and justices of the peace.

Wednesday, January 13, 2016

Ontario court case suggests that PGP and Blackberry security have been cracked

A recent case from the Ontario courts suggests -- quite strongly -- that PGP (Pretty Good Privacy) and Blackberry security have been cracked by the Royal Canadian Mounted Police.

We rarely get much insight about police techniques from reported cases, but this seems to be a doozy in R v Tsekouras, 2015 ONSC 1470:

[10] The police were presented with a Blackberry cell-phone ….44505 that had been seized from the accused. Their objective was to read the information embedded in that cellphone. The BlackBerry has a reputation for being a very secure means of communication. There were three levels of security. Entry was protected by a password, the device was protected by encryption generally and e-mails processed by this particular device were protected by PGP, a form of e-mail encryption provided as an “add-on” by a third party after-market supplier. This encryption was previously thought to be undefeatable. The RCMP technological laboratory destroyed this illusion and extracted from this phone 406 e-mails, 25 address book entries and other information all of which had been protected. These materials are collected in Exhibit 8.

Of course, it could have been defeated by really bad OpSec, but who knows?