Crim­i­nal nee­dles and law­ful haystacks

The Compass - - EDITORIAL -

Sum­mer­side is a lovely place to visit — and if you’re in P.E.I., you should def­i­nitely take the time to get there, if for no other rea­son than a Septem­ber sun­rise over the fields where Read Drive meets Route No. 2, hay bale dogs and all.

But for the pur­pose of this col­umn, with a pop­u­la­tion of just 14,751 in 2011, Sum­mer­side’s just not big enough — keep that in mind.

Truro, N.S. or New Glas­gow? Put the two to­gether, and you’d only have a com­bined pop­u­la­tion of 21,621. Syd­ney, N.S.? Closer — 31,597 in the same year.

St. John’s, N.L.? Too big — 196,966.

But Char­lot­te­town, P.E.I., with a pop­u­la­tion of 34,562 in 2011? Now, we’re get­ting closer.

Stop and imag­ine that there were a se­ries of three armed rob­beries in Char­lot­te­town, and that the po­lice had an idea to catch the rob­bers. They’d sim­ply down­load the data from ev­ery sin­gle cell­phone user in the city — and more from the out­skirts of the city — to see if any­one could be pin­pointed as hav­ing been in the area of all three stores that were robbed, at the time they were be­ing robbed.

Hey, presto! A new way to find a nee­dle in a haystack.

But it does sound a lit­tle in­tru­sive, doesn’t it?

It is, how­ever, ex­actly what the Peel Re­gional Po­lice wanted to do to find a group of jew­elry store rob­bers in their ju­ris­dic­tion. They went to a jus­tice of the peace and asked for a pro­duc­tion or­der com­pelling cell­phone com­pa­nies to hand over in­for­ma­tion on ev­ery caller whose phones were in touch with 47 dif­fer­ent cell­phone tow­ers. The process is called a “tower dump,” and in that par­tic­u­lar case, would in­clude data on a min­i­mum of 43,000 cell­phone users.

Here’s how a judge de­scribed those or­ders: “The pro­duc­tion or­ders re­quire the name and ad­dress of ev­ery sub­scriber mak­ing or at­tempt­ing a com­mu­ni­ca­tion through the par­tic­u­lar cell tower. … The pro­duc­tion or­ders also re­quire billing in­for­ma­tion which may in­clude bank and credit card in­for­ma­tion.”

The po­lice didn’t say what they wanted the in­for­ma­tion for, how long they planned to keep it, or even what they were go­ing to do with it, let alone how they were go­ing to store it se­curely. But the jus­tice of the peace granted the or­der.

When Rogers and Telus chal­lenged the or­ders, the judge agreed some­thing was amiss. (The po­lice ar­gued only in­di­vid­u­als whose data was ob­tained had a right to com­plain, but, in a catch-22, users would never know their data had been cap­tured or, in other words, that they had any­thing to be com­plain­ing about.)

The judge? “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?”

The end re­sult is that On­tario Supreme Court Jus­tice John Sproat tight­ened up the process, is­su­ing guide­lines that would re­quire more fo­cused in­for­ma­tion-gath­er­ing — in fact, in­for­ma­tion-gath­er­ing di­rected at the per­pe­tra­tors, not the pub­lic at large. The only ques­tion? Why would a Cana­dian po­lice force be­lieve that such a large har­vest­ing of the pri­vate in­for­ma­tion of law-abid­ing cit­i­zens was le­gal in the first place?

The po­lice didn’t say what they wanted the in­for­ma­tion for, how long they planned to keep it, or even what they were go­ing to do with it, let alone how they were go­ing to store it se­curely.

Rus­sell Wanger­sky is TC Me­dia’s At­lantic re­gional colum­nist. He can be reached at rus­sell.wanger­ Twit­ter: @Wanger­sky.

Rus­sell Wanger­sky

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