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.

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[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.