The Ontario Superior Court of Justice (Court) recently ruled in R. v. Rogers Communications that broad cellphone “tower dump” production orders are unconstitutional as unreasonable seizures under section 8 of the Charter of Rights and Freedoms (Charter). A “tower dump” order requests information about communications transmitted through a cellphone tower during a particular time period, such as the telephone numbers of the sender and recipient and the precise timing and duration of the communication. The Court concluded that privacy rights exist in information about calls, emails and texts, even when the actual content of those communications is not being disclosed. The Court set out guidelines that police forces should follow to obtain production orders that are minimally intrusive of subscribers’ privacy rights in information about their cellphone activity.

FACTS

In 2014, the Peel Regional Police (PRP) was investigating a string of jewelry store robberies. To advance its investigation, PRP obtained broad production orders (Orders) — known as “tower dumps” — for cellphone records for all phones activated, transmitting, or receiving data through multiple cellphone towers operated by Rogers Communications Partnership (Rogers) and Telus Communications Company (Telus). The Orders required Rogers and Telus to produce the name and address of every subscriber making or attempting to make a communication (call, text, or email) through the identified towers, as well as the name and address of every recipient who was also a Rogers or Telus subscriber. In addition, the Orders sought the billing information of every identified subscriber, which may include bank or credit card information.

Rogers and Telus filed evidence that complying with the Orders would be onerous and result in the disclosure of personal information of more than 40,000 subscribers. They asked the Court to declare that production orders must be tailored to respect subscriber privacy and the Constitution. Even though the Orders were withdrawn by PRP before the hearing, the Court decided it should still rule on the application, and that Rogers and Telus had standing to request relief.

PRIVACY RIGHT IN CELLPHONE ACTIVITY

The Court found that Canadians have a reasonable expectation of privacy in their cellphone activity records, even where the content of the communication is not produced. Despite acknowledging that it is “innocuous” in the vast majority of cases, the Court concluded that Canadians expect the recipient and timing of their calls to be private: “[w]hether and when someone chooses to contact a divorce lawyer, a suicide prevention hotline, a business competitor or a rehabilitation clinic obviously implicates privacy concerns.” The Court noted that legislation such as the federal Personal Information Protection and Electronic Documents Act protects information that identifies an individual, and the Criminal Code requires prior judicial authorization before transmission data recorders can be used to capture the telephone numbers of persons sending and receiving communications. In addition, the Court cited earlier case law that held there is a reasonable expectation of privacy in tower dump records.

OVERBROAD “TOWER DUMP” PRODUCTION ORDERS VIOLATE THE CHARTER

The Court found the Orders violated section 8 of the Charter because they were not a “minimal intrusion”, but rather went far beyond what was necessary for the police to gather evidence of the crime they were investigating. The Orders potentially required the production of subscriber information of recipients of communications who were hundreds or thousands of miles from the crime scene, required bank and credit card information of tens of thousands of subscribers that was irrelevant to the investigation, and required the production of the personal information of more than 40,000 subscribers when all the police were interested in was a list of a few individuals who were using a cellphone close to more than one robbery location.

GUIDANCE FOR “TOWER DUMP” PRODUCTION ORDERS

The Court issued guidance for the police when applying for “tower dump” production orders in the future:

Offer case-specific information to meet the statutory requirement that there are reasonable grounds to believe the order will yield evidence of the offence under investigation Follow an incremental approach, keeping the information requests as narrow as possible, and applying for additional orders if necessary Consider seeking a report that includes the information they want, instead of demanding the underlying data Explain why the named locations, cell towers, dates, times, and records sought are relevant to the investigation at issue Provide any details or parameters that might allow the company subject to the order to narrow its search and produce fewer records Confirm that the types and amounts of data requested can be meaningfully reviewed

The Court did, however, refuse to place certain requested limits on “tower dump” production orders. It refused to impose an absolute restriction based on the volume of materials requested and refused to require the police to impose particular post-seizure safeguards on the information received, finding that it was for legislatures to address this issue. The Court also refused to hold that “tower dump” orders should be used only as a last resort, after traditional investigative techniques have failed.

CONCLUSION

The Court has articulated significant limits on the ability of police to obtain telecommunications subscriber information through “tower dump” production orders. More generally, the Court’s decision demonstrates that even “data about data” may be private. It is an important reminder that information about customer or employee communications may be protected even when the actual content of those communications is not in issue.