Ontario Court Provides Guidelines to Balance Privacy Rights & "Tower Dumps" in R v. Rogers Communications

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Ontario Court Provides Guidelines to Balance Privacy Rights & “Tower Dumps" in R v. Rogers Communications

January 18, 2016

By David Fraser, Privacy Lawyer | Partner at McInnes Cooper

On January 14, 2016, the Ontario Superior Court decided that Canadians have a clear privacy interest in their records of their cellular telephone activity, and telcos not only can stand up for their customers’ privacy rights in those records– they may be contractually obligated to do so. The decision drags overly broad “tower dump” production orders from the shadows, “deputizes” telcos (and possibly others like internet companies) as the guardians of personal privacy, and gives police clear and balanced guidelines for when and how they can obtain telco customer information through “tower dumps”. Police were investigating a string of robberies and obtained production orders requiring at least two telcos (without prior notice to the telcos) to provide police with a “tower dump” of the following information from the cellular towers they operate:

Names and addresses of all customers connected to the towers at the relevant times.
Who those customers were calling and 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.

The telcos protested on the basis the request would result in the disclosure of information about over 40,000 customers. They applied to court to set the production orders aside on the basis the orders violated their customers’ freedom from unreasonable search and seizure under section 8 of the Canadian Charter of Rights and Freedoms. The police withdrew the production order and argued the telcos’ application was moot and they didn’t have legal standing to assert their customers’ privacy interests. The court disagreed and, given the important privacy interests at stake, ordered a hearing by the Ontario Superior Court. After that hearing, the court agreed with police that tower dumps are a valuable investigative technique – but ultimately disagreed the telcos had no standing to assert their customers’ privacy rights:

Standing & contractual obligation to assert customers’ privacy interests. The telcos not only had standing to assert the privacy interests of their subscribers – they may in fact be contractually obligated to do so.
Reasonable expectation of privacy. It’s a matter of “common sense” that Canadians have a reasonable expectation of privacy in the records of their cellular telephone activity, particularly because it also discloses location information.
Production orders overbroad. 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 – and thus violated section 8 of the Charter.

Guidelines for police & justices of the peace. To focus the scope of any future production order and ensure compliance with the Charter and the Criminal Code, the court outlined seven (7) specific guidelines for the information police should include when seeking a production order, and a second set of guidelines for justices of the peace to follow when assessing whether to issue one.

It’s becoming clear that internet companies and telcos are the guardians of personal privacy in this connected age. Canadians surf the internet and walk the streets in relative anonymity, but telcos have the ability to connect the dots – and to name us for the police. Tower dumps are, in a nutshell, the production of all the records of a cell phone tower at a particular time. Since a mobile phone is always communicating with at least one tower, tower dumps can tell police who is in the vicinity of a particular location at a particular time – but the records overwhelmingly contain information about people with nothing to do with the underlying police investigation. Clear rules are necessary so police can only compel telcos to use this powerful ability when it’s reasonable to do so and in accord with the Charter. This decision drags “tower dump” production orders out of the shadows, shines the light on abusive and overly-broad ones and provides police and justices of the peace seeking and issuing these orders with sensible guidelines, that strike the right balance between the public interest in having the police investigate crimes, and respecting the privacy of those whose information is implicated. Read the Ontario Court of Superior Justice’s decision in R. v. Rogers Communications, 2016 ONSC 70 [PDF] here.

Please contact your McInnes Cooper lawyer or any member of our McInnes Cooper Privacy Team to discuss this topic or any other legal issue.

McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.

© McInnes Cooper, 2016. All rights reserved. McInnes Cooper owns the copyright in this document. You may reproduce and distribute this document in its entirety as long as you do not alter the form or the content and you give McInnes Cooper credit for it. You must obtain McInnes Cooper’s consent for any other form of reproduction or distribution. Email us at publications@mcinnescooper.com to request our consent.

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