TORONTO – Police in Ontario will have to be careful when they ask a judge to order cellular carriers to hand over data records of phones that use particular cell towers in the province, a judge has ruled.
Law enforcement agencies want such data, including personal information on subscribers, to track the movement of suspects and who they are contacting.
But Justice John Sproat of Ontario's Superior Court of Justice ruled Thursday that a 2014 order by a justice of the peace telling Rogers Communications and Telus Corp. to turn over records for all phones activated, transmitting and receiving data through 21 Telus and 16 Rogers towers was too broad and violated the Charter of Rights.
That order was withdrawn before it could be carried out, but the judge decided to rule on a objections by the two carriers that the order was unconstitutional.
"I have no hesitation in finding that the production orders required went far beyond what was reasonably necessary to gather evidence concerning commission of the crimes under investigation," the judge wrote.
In particular, he noted the production order granted to Peel Regional Police (which covers the cities of Mississauga, Brampton and the town of Caledon, all just west of Toronto) would have required Rogers and Telus to produce personal data on over 40,000 subscribers, when all the police were really interested in was information on anyone using a cellphone near one robbery location.
In addition, the data Peel police wanted would have included personal information on other people on a call that may have been thousands of miles from the crime scene, and required producing a broad amount of financial information on subscribers when a follow-up application could have narrowed it down.
Brendan Crawley, a spokesman for the provincial attorney general's department, said the government is reviewing the decision. It has 30 days to file an appeal.
David Watt, Rogers' chief privacy officer, said in a statement that the carrier went to court because it wanted to ensure its customers' privacy rights are protected and to argue there are ground rules for the scope of what law enforcement is able to request and access.
"In this case, the original request would have involved over 30,000 Rogers customers, virtually all of whom would have had nothing to do with the investigation. We thought that crossed the line and was too broad and intrusive… At Rogers, we will only share customer information with law enforcement when required by law, or in emergencies after careful consideration of the request. For us, this request did not meet the test and we're glad the Court agreed."
In his decision, the judge said that production orders issued by the justice of the peace generally don't specify how customer information will be safeguarded, nor do they restrict how police can use the data.
"In this case thankfully Rogers and Telus pushed back. But from what I understand there were at least four other production orders against other carriers who presumably did not." – David Fraser, privacy lawyer
The judge also noted that so-called tower dump orders are a valuable police investigative technique because criminals often use cell phones to facilitate crimes.
But he also issued six guidelines that police in Ontario now have to follow if they want to successfully get a court order for data that carriers must produce. These include:
- a statement that the police officer seeking the production order is aware of the principles of minimal intrusion and has tailored the request to that;
- an explanation of why all the named locations or cell towers and dates and times are relevant to the investigation;
- an explanation of why all the types of records being sought (such as bank or credit card information) are relevant;
- details that might permit a carrier to conduct a narrower search and produce fewer records;
- a request for a report on specified data, rather than underlying (or generally) data; if police want underlying data it has to be justified;
- confirmation that the data being requested can be meaningfully reviewed.
The decision applies only in Ontario but will be noticed by courts in other provinces and territories.
Halifax privacy lawyer David Fraser – who called the order sought by Peel police "grossly broad" – noted Justice Sproat rejected an argument that Canadians don’t have an expectation of privacy in their cell phone records.
The decision "hopefully shines a light on practices that have been going on where police go to a justice of the peace ex parte [meaning without notifying a suspect] and will get as much information as they possibly can and seek horrendously broad orders and then go and try to enforce those orders against telcos.
"In this case thankfully Rogers and Telus pushed back. But from what I understand there were at least four other production orders against other carriers who presumably did not."
Fraser noted that in 2014, the Supreme Court of Canada ruled Canadians expect that information held by telecommunications carriers is private and can’t be turned over to police without a search warrant.
