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.