Phone data grab breaches Charter
An Ontario j udge has ruled that socalled “tower dump” search warrants violate the constitutional and the privacy r i ghts of Canadian cell phone customers.
In an i mportant l egal ruling that limits the ability of Canadian police to investigate crime by tracking cell phone use, Justice John Sproat of the Ontario Superior Court said wireless phone companies do not have to provide investigators with usage and billing records for thousands of customers when police are only after a small group of suspects.
“Common sense indicates that Canadians have a reasonable expectation of privacy in the records of their cellular phone activity,” the judge writes in a 26- page ruling issued Thursday.
Cell phone providers Rogers and Telus jointly challenged a 2004 search warrant sought by regional police in Peel, west of Toronto, as part of an investigation into a string of local jewelry store robberies. The so-called “production order” would have required both companies to provide police with names, addresses and billing information of every subscriber whose wireless phones had connected with a string of 37 cell phone towers in the Peel area.
Rogers argued in court that to comply with the order, it would have to run 378 different searches on 200,000 records related to 34,000 subscribers. Telus said the order would have required it to supply details on 9,000 customers.
“We thought that crossed the line and was too broad and intrusive,” said David Watt, chief privacy officer f or Rogers Communications. “We went to court because we wanted to ensure our customers’ privacy rights are protected and that there are ground rules for the scope of what law enforcement is able to request and access.”
Police had a hunch mobile phones were used during the jewelry store robberies. Cellphone towers near the crime scenes would have captured personal information about the callers, so police sought the production order to identify suspects.
Telus and Rogers challenged the order in court, arguing that it violated Section 8 of the Canadian Charter of Rights and Freedoms, which protects everyone in Canada from unreasonable search and seizure. The companies also argued they have contractual obligations to keep subscriber informa- tion confidential.
Once t he c o mpanies made it known they would challenge the constitutional validity of the production orders in court, Peel police decided to drop the “tower dump” search warrant and follow other leads in the jewelry store heists. That made the legal challenge to the Peel tower orders moot. Justice Sproat decided to issue a ruling in the Telus and Rogers case anyway so Canadian courts would have a legal precedent on the constitutional validity of tower dump orders.
The production order in the Peel jewelry cases went way too far, the judge wrote. If granted, the phone records would have provided police with a range of information that would intrude on the private lives of cellphone users: What if callers were speaking with a lawyer? What if someone was working on a private business deal? What if the call revealed someone was playing hooky from work to go to a Blue Jays Game?
“I appreciate that cellphone 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 that Canadians certainly regard as private. The law supports this conclusion,” the judge wrote.
Judge Sproat didn’t completely ban police from ever asking for cellphone tower records. Rather, he spelled out some guidelines that are designed to prevent searches from turning into fishing expeditions. In a nutshell, police can’t ask cellphone companies for more information than investigators can review, and police must keep the scope of searches as narrow as they can.
A spokesman f or Ontario’s Attorney General said the ministry is reviewing the decision. “As the matter is currently within the appeal period, we have no further comment.”