LEXPERT MAGAZINE
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MARCH 2016 13
a clear privacy interest in all their cellular
telephone activity records. "As discussed,
each subscriber has a reasonable expecta-
tion of privacy in the information sought
by the [police]," Sproat added.
But he also opined that telcos have a
"contractual obligation" to keep subscriber
information confidential. "Each subscriber
has contracted with Rogers and Telus for
an assurance that subscribers' personal in-
formation will, within certain limits, be
kept confidential," Sproat wrote.
e upshot is that telecom companies
and others are not only entitled to stand up
for their customers' privacy rights in that
information but may also be contractually
obligated to do so. "e decision deputizes
telcos and possibly others like Internet
companies as the guardians of personal pri-
vacy," Fraser says.
e precise reach of the obligation to
protect customers' privacy, however, is not
clear. "Justice Sproat didn't identify any
specific contractual provision as the source
of this obligation," says Catherine Beagan
Flood in the Toronto office of Blake, Cas-
sels & Graydon LLP.
What also remains to be seen is the ex-
tent to which companies will be able to rely
on the law's benign view of judicially issued
directives. "ere is
a presumption of le-
gality that applies to
these types of orders,"
Hutchison points out.
At the very least,
however, it appears
that companies receiv-
ing production orders
will be forced to make
some judgment about the orders' legality.
As courts have acknowledged, moreover,
determining whether there is a reasonable
expectation of privacy is a complex endeav-
our. Part of the difficulty is that companies
'Tower Dumps' Breach Privacy
Court sets high bar for police demanding indiscriminate records from cellphone towers BY JULIUS MELNITZER
receiving production orders rarely have any
insight into the information on which the
order is based. "So it's going to be an incred-
ibly difficult task for companies to analyze
what the police are
doing and second-
guess whether an
order issued by a JP
or a judge is one that
meets constitutional
requirements," Bea-
gan Flood says.
To be sure, Spro-
at's ruling, which
puts the spotlight
on tower dumps and
provide guidelines for police and justices of
the peace, should serve to limit the scope
of such orders. "e starting point is that
if the police and the issuing justice focus on
the statutory requirements and the prin-
ciple of minimal intrusion, the resultant
production order will be no more extensive
or onerous than is reasonably necessary in
order to investigate the crime in question,"
Sproat wrote.
e guidance issued by Sproat requires
police seeking production orders to prof-
fer case-specific information; keep their
requests as narrow as possible; consider
obtaining a summary of the information
sought instead of the underlying data; ex-
plain why the places and time sought are
relevant; provide details that might help
companies narrow their search; and con-
firm that the data request could be mean-
ingfully reviewed.
However that may be, Rogers is a judg-
ment that any Canadian business holding
personal information should take note of.
"e case applies to anyone, such as finan-
cial institutions and Internet companies,
who receive a production order or search
warrant that requests private personal
data," Beagan Flood says.
A RECENT ONTARIO Superior Court
decision may obligate companies to mount
constitutional challenges to production or-
ders that intrude on customers' privacy.
"R. v. Rogers tells companies like telcos,
banks and others that they must review
production orders carefully and challenge
them if they raise significant constitutional
issues," says Scott Hutchison of Henein
Hutchison LLP in Toronto, who was lead
counsel on the application by Rogers and
Telus to quash certain production orders.
In his decision, Justice John Sproat of
the Ontario Superior Court ruled that the
"tower dump" orders issued by justices of
the peace at the request of Peel Regional
Police were too broad and amounted to
unreasonable seizures under the Charter of
Rights and Freedoms.
e orders would have required Telus to
disclose the personal information of at least
9,000 individuals and conduct separate
searches for telephone calls and text mes-
sages. Rogers estimated that it would be
have to conduct 378 separate searches and
retrieve approximately 200,000 records re-
lated to 34,000 subscribers.
"Tower dumps are, in a nutshell, the pro-
duction of all the records of a cell phone
tower at a particular time," says David Fra-
ser of McInnes Cooper in Halifax. "Rogers
and Telus went to court because they didn't
want to incur the expense involved."
Sproat reasoned that Canadians have
DAVID FRASER
>
MCINNES COOPER
CATHERINE
BEAGAN FLOOD
>
BLAKE, CASSELS
& GRAYDON LLP
'EACH SUBSCRIBER HAS
CONTRACTED ... FOR
AN ASSURANCE THAT
SUBSCRIBERS' PERSONAL
INFORMATION WILL ...
BE KEPT CONFIDENTIAL.'
>
JUSTICE DAVID SPROAT,
ONTARIO SUPERIOR COURT OF JUSTICE
ON THE CASE
