In the context of criminal investigations police in Canada may obtain tower dump production orders. These are orders requiring the applicable cellular telecommunications providers to disclose all records of cellular traffic through a particular cell tower over a specified time period. In R. v. Rogers and Telus, 2016 ONSC 70, Justice Sproat noted that "Every year such orders require cellular providers to produce the names and addresses of hundreds of thousands, if not millions, of subscribers; who they called; who called them; their location at the time; and the duration of the call. These orders may also require that credit card information be provided."
The context for this case was that Telus and Rogers were served with an expansive tower dump production order as part of an investigation by Peel Regional Police who were instigating a series of jewellery store robberies. The Police sought to identify persons using cell phones in the vicinity of each store around the time it was robbed. The Production Orders required the name and address of every subscriber making or attempting a communication through the particular cell tower. The orders also required that if both the person initiating and the person receiving the communication are Rogers or Telus subscribers, then information regarding the recipient must also be provided and the cell tower the recipient used must also be provided. The Production Orders also require billing information which may include bank and credit card information.
The Production Orders do not specify how customer information is to be safeguarded and do not expressly restrict the purposes for which the Police may use the information.
Recognizing that they have an obligation to keep the information of their subscribers confidential, Telus and Rogers both sought the Court to tailor the production order to respect the privacy interests of subscribers and constitutional requirements. Telus and Rogers provided evidence that each of them had responded to thousands of such orders since 2003.
The Police provided evidence on the helpfulness of such data as a criminal investigative tool.
Telus noted that "tower dump orders are unusual in that, by their nature, 99.9% of the records sought will relate to innocent persons" and therefore there was a need to protect the privacy interests of these individuals.
The Court commenced its analysis with a recognition that cell phone data is information that Canadians certainly regard as private. The Court found that "Rogers and Telus have standing to assert the privacy interests of their subscribers and are contractually obligated to do so."
The Court conducted a constitutional assessment in light of Section 8 (Everyone has the right to be secure against unreasonable search and seizure.) of the Charter and was guided by the Supreme Courts determination in R. v. Vu, 2013 SCC 60, that there must be judicial authorization for the search and the search must be conducted in a reasonable manner. The Court found that the Production Orders were overly broad and went well beyond what was reasonable to gather evidence concerning the jewellery story robberies, such as requiring production of information on subscribers remotely located from the robbery sites, production of bank and credit card information and production of personal information on over 40,000 subscribers when the police really only sought information on the few individuals who may have been proximate to more than one of the robbery sites.
The Court declared that the Production Orders authorized unreasonable searches and "so breached the S. 8 Charter rights of the Rogers and Telus subscribers."
The Court went on to provide guidance to both police and issuing Justices of the Peace on what may be appropriate. After considering guidance suggested by counsel, the Court provided the following guidelines for police:
"The police should include in the information to obtain a production order:
- One “ a statement or explanation that demonstrates that the officer seeking the production order is aware of the principles of incrementalism and minimal intrusion and has tailored the requested order with that in mind.
- Two “ an explanation as to why all of the named locations or cell towers, and all of the requested dates and time parameters, are relevant to the investigation.
- Three “ an explanation as to why all of the types of records sought are relevant.
- Four “ any other details or parameters which might permit the target of the production order to conduct a narrower search and produce fewer records.
- Five “ a request for a report based on specified data instead of a request for the underlying data itself.
- Six “ if there is a request for the underlying data there should be a justification for that request.
- Seven “ confirmation that the types and amounts of data that are requested can be meaningfully reviewed."
Justices of the Peace would also consider such guidance.
This case shows the increasing importance of consideration of privacy principles and interests in the criminal investigative process and the close link between privacy interests and Charter rights.
Organizations should keep privacy principles in mind not only in the criminal but also commercial context.