Canada: Phone Companies After R v. Rogers: Constitutional Guardians Or Agents Of The State?

People love their phones. Phones now accompany us pretty much wherever we go, whatever we do. People use their phones in church, in restaurants, at the theatre, and, apparently, while committing crimes. And our phones are leaving a trail behind us.

Police know this. They also know that records are created every time our phones connect to cell towers to send and receive calls, SMS messages, or data. Every one of those records indicates that a phone (and, implicitly, the person carrying it) was in range of a particular cell tower, at a particular time.

This could be useful information if, say, one wanted to identify the person (or people) responsible for a string of jewelry store robberies.

The method will be familiar to many from movies and T.V. shows: all you need to do is to gather a list of every single person who was near each of the locations of interest at the time of interest and analyze the patterns. And, hey, that cell tower data can provide that list....

But is it legal? What about the privacy interests of the literally tens of thousands of other people who may have been passing by those locations at the time? This was the subject of a recent decision of Justice Sproat, of the Ontario Superior Court of Justice.

Context

The circumstances that led to the decision in R v Rogers Communications, 2016 ONSC 70, can be stated briefly. In April of 2014, the Peel Regional Police (PRP) were investigating a string of jewelry store robberies. They sought, and obtained, a production order under s. 487.012 of the Criminal Code (which has since been replaced by s. 487.014, which is substantially similar).

The production orders, which were issued by a Justice of the Peace, as set out in the Criminal Code, required the name, address, and billing information of every subscriber making or attempting a communication through a number of cell towers. This included subscribers who were not located anywhere near those towers, if their communications passed through the towers in question.

Two telecommunications companies, Rogers and Telus, objected to the production orders and challenged them in court. In light of the challenge, the PRP sought to withdraw the production orders and to replace them with more narrow orders. They also argued that the challenge should be dismissed as moot. In a preliminary decision in July 2014, Justice Sproat agreed to revoke the original production orders, but allowed the Charter challenge to proceed nonetheless.

The follow-up decision, issued on January 14, 2016, confirms that telecommunications users have a reasonable expectation of privacy in the tower data and that the production orders originally sought in this case were unconstitutionally broad. The decision attempts to provide guidance both to police and to Justices of the Peace as to how to limit production orders such that the conform to both the Criminal Code and the Canadian Charter of Rights and Freedoms.

Guidance on Scope of Production Orders

At the heart of the guidance lies one relatively simple principle: collect no more personal information than is necessary. This basic concept is familiar both in Canadian privacy law (for example, limiting collection is one of the Fair Information Practice Principles in PIPEDA, the federal private sector privacy statute, although this statute expressly does not apply to law enforcement) and constitutional law (minimal impairment is one of the branches of the so-called Oakes test for a justifiable infringement of Charter rights and freedoms).

Based on this principle, Justice Sproat set out seven non-binding guidelines addressing what the police should include in the "information to obtain" (being the information the police put before the Justice when requesting the order). But the main ideas can be restated slightly more simply.

  • Police should explain why all of the data requested is relevant to the investigation.
  • Police should not omit or ignore any details or parameters that might help narrow the search.
  • Police should either limit the request to a report that distills out the relevant information (for example: the list of telephone numbers that show up at multiple locations of interest, rather than the raw list of every number that appears at any of the locations) or explain why the raw data is necessary for the investigation.

The first two of these seem rather straightforward. The last is interesting. It presumes that it is constitutionally preferable to have a private actor—in this case a phone company—do this analysis on behalf of the state.

On one hand, this makes some sense. The Charter regulates the relationship between the state and the individual. It does not normally apply to the activities of private parties. Moreover, the phone companies already have this data, so they are, at least in a sense, not learning anything new in the process. It certainly does help minimize the amount of personal information that changes hands, which should help prevent proliferation and the attendant risk of unauthorized use of the information, while still putting the relevant information in the hands of the police.

But one might ask whether this arrangement is entirely satisfactory for the service providers, who seem to have been deputized into some kind of investigative role, or their customers.

This connects to the fourth issue in the case, which is the most technical but possibly the most interesting: whether the service providers had standing to bring the claim at all.

Standing of Service Providers

Justice Sproat's analysis of this point is brief, but it arguably addresses the elements of the test for public interest standing: there seem to be clear findings that there was a serious constitutional issue and that there was no other reasonable means for the issue to be brought before the courts. But on the final branch of the test, that is, whether the phone companies had a genuine interest in the matter, the decision is less clear.

The decision seems to rely on the contractual relationship between the service providers and their customers. In fact, Justice Sproat goes so far as to say at para. 38 of the decision (although this is obiter dicta) that Rogers and Telus not only had standing to bring the challenge, they had a contractual obligation to do so.

If this is true, it raises some questions.

Does a Contract Oblige Service Providers to Challenge Production Orders?

First, it seems there were other service providers who were prepared to comply with the initial, over-broad production orders. Were their service contracts substantially different from those of Rogers and Telus? If not, should they have been liable to their customers for failing to contest the order? What remedies would the customer have, and how would they be enforced? Can the service provider change the terms of that contract to avoid this duty to litigate their customer's Charter rights?

Second, why is it more consistent with a contractual obligation of confidentiality for service providers to directly perform the same analysis that the police might otherwise have performed? Less irrelevant personal information will end up in the hands of the state, which does have the salutary effect of protecting against potential misuse of the information, but there will still be disclosures of personal information, including about people who have no involvement in the crimes under investigation. Can the service provider simultaneously act as a guardian of customers' privacy interests and as a delegated investigator for the state?

Third, is society's interest in justice well-served by this delegation? How can the police, the courts, or society at large have confidence that these reports are complete and accurate unless there is some way to independently verify them against the raw data?

Fourth, does this do anything to relieve the service providers from the burdens of performing the over-broad searches? On its face, it seems to increase the burden on them: now, not only will they have to perform the same searches, they will have to analyze the data and produce reports from them. Furthermore, they apparently also will have to concurrently perform a legal analysis to determine whether or not they have a contractual duty to object to the request (or a statutory obligation to comply with it, or both).

Uncertain Role of Service Providers

The principle of limiting the collection of personal information, and the associated impairment of the Charter freedom from unreasonable search and seizure, is doctrinally sound. Justice Sproat's guidelines mostly seem sensible and helpful on their face. Even the concept of limiting the production to a report, rather than raw data, seems attractive. But, with all respect to Justice Sproat, who has clearly attempted to strike a practical balance that is protective of Charter interests, it is not obvious that he has achieved an entirely satisfactory solution to this difficult problem.

Justice Sproat himself noted that at least some of the questions raised by the parties, such as whether safeguards should be imposed to protect the personal information when it is in the hands of the police and whether the police should limit recourse to tower dump orders to a "last resort" when other techniques have failed, were better left to Parliament. It may be that the obligation for service providers to effectively participate in the investigation by performing data analysis on behalf of the state should also be in this category. This might permit a more comprehensive assessment of what role the service provider should play and what safeguards should be in place.

To view original article, please click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions