Introduction

“Was the person at the Blue Jays game instead of at work?”  In his decision in R v. Rogers Communication1, Justice Sproat of the Ontario Superior Court of Justice used this innocuous hypothetical to illustrate the privacy interest that the Canadian public may have in their cellular telephone records.  In an age where the towers accessed by cellular telephones can indicate the user’s geographic location to those with access to the data, an unauthorized day at the park can turn into seriously unwanted attention if there is a cellular telephone in your pocket.  But playing hooky from the office should be the least of the fears of the general public when it comes to police access to the records of cellular towers as part of an investigation. 

Pursuant to Section 487.014 of the Criminal Code, the police can request an order for production of these or any other computer records if there are reasonable grounds to suspect that an offence has been or will be committed.  These types of requests are frequent.  In  2013 alone, Telus responded to 2,500 production orders and general warrants, and Rogers indicated that it produced 13,800 “files” in response to production orders and search warrants.2

“Tower Dump” Production Orders

“Tower dump” production orders occur when police organizations request the records pertaining to every user whose cellular phone connects to a certain tower or towers.  Each tower serves a specified geographical area, and each time a phone connects to that tower, a record is produced identifying the phone that connected, which can then be linked back to the account and account holder.  In effect, these records can be used, through tower dump production orders, to identify all users in the geographic area serviced by any particular tower.  These types of records are only one example of the many types of information that telecommunications service providers have about their users.

Tower dump production orders are especially useful to the police where a single suspect or group of suspects are believed to be involved in a string of crimes. Tower data can be used to demonstrate that those suspects were in the vicinity of the crime location at the time the crime was taking place.  Similarly, tower data may be used in single incidents where the police have reasonable grounds to believe that the perpetrator used a cell phone near the crime scene.  In either situation, the information obtained can be used to seek additional production orders.

R v Rogers Communications, 2016 ONSC 70

In R v. Rogers Communications, the Peel Regional Police obtained a production order against Telus and Rogers as part of the investigation of a string of jewelry store robberies.  The order sought production of all of the data from more than 21 Telus towers and 16 Rogers towers.  This data included the name and address of every subscriber making or attempting a call through any of those towers, the recipients of any of those calls if they were Telus or Rogers customers, as well as billing information.  In order to comply, Telus estimated that it would be required to disclose the personal information of at least 9,000 individuals.  Rogers estimated that it would be required to retrieve approximately 200,000 records related to 34,000 subscribers.

Telus and Rogers opposed the orders, arguing that the production orders violated their users’ right against unreasonable search and seizure under Section 8 of the Charter of Rights and Freedoms.  They argued that their customers had a reasonable expectation of privacy with respect to their cellular records, and that the production orders went beyond what was necessary to collect the required evidence for the investigation.

Justice Sproat declared that Telus and Rogers had standing to assert the Charter rights of their subscribers, and that the production orders violated the subscribers’ rights under Section 8.  As the Peel Regional Police had subsequently narrowed the scope of their investigation, this declaration was moot, but did present the opportunity to address the issue of tower dump production orders generally.

Justice Sproat declined to confine requests for production orders to “last resort” situations, where other techniques had failed, and held that placing general limitations on the availability of police investigation techniques is a matter best left to Parliament.  Similarly, he deferred to the legislature to determine the types of data protection safeguards that should be imposed on the police post-seizure.

Guidelines for Police Seeking Tower Dump Production Orders

In an attempt to aid police in tailoring further requests for tower dump production orders, Justice Sproat gave general guidelines for police.  These guidelines include:

  1. including a statement that the officer requesting the order is aware of the principle of minimal intrusion and tailored the request accordingly;
  2. explaining why all named locations or towers, as well as all time and date parameters, are relevant to the investigation;
  3. explaining why all records sought are relevant;
  4. including any details or parameters that might allow the provider to conduct a narrower search and produce fewer records;
  5. requesting a report based on the specified data instead of a request for the underlying data itself;
  6. including a justification for requesting the underlying data instead of a report based on it; and
  7. confirming that the types and amounts of data requested can be meaningfully reviewed.

Conclusion

This decision indicates that the allowable scope of tower dump production orders should become narrower and less onerous in the future, lessening the prospect that telecommunications service providers will be required to indiscriminately produce large volumes of sensitive subscriber information to the police. But even if your geolocation records during work hours may now be less likely to make their way to your employer, it might still be a good idea to take a vacation day to see that ball game.