Yesterday, Justice Sproat of the Ontario Superior Court released a decision in a case involving Rogers, TELUS, and the Peel Regional Police. Back in 2014, the police force had requested “tower dump” data from these companies in order to identify some robbery suspects. The orders were so broad (the broadest ever, to the knowledge of the TELUS deponent) that the telecom companies opposed them in court. Despite the fact that the production orders were then withdrawn by police, the judge heard the case anyhow, and was able to offer guidance for police and telecom companies dealing with similar cases in the future.
David Fraser has provided a legal analysis of the decision, which found that “the Production Orders were overly broad and that they infringed s. 8 of the Charter” [42]. For me the most interesting aspects are what this decision tells us about the roles and responsibilities of intermediaries as privacy custodians. The decision states (on the issue of whether the companies have standing in the case) that Rogers and TELUS “are contractually obligated” to “assert the privacy interests of their subscribers” [38]. That is to say, the relationship these companies have with their customers creates obligations to protect subscriber information, and this protection includes defending subscribers against unconstitutional court orders. It is not reasonable to expect individual subscribers to defend their privacy interests in such cases — the intermediary should stand between the individual and the state as a privacy custodian (and this means making determinations about which police requests and court orders are unconstitutional).
Also of particular interest is the judge’s recommendation that police should request “a report based on specified data instead of a request for the underlying data itself”, unless this “underlying data” is required for some reason [65]. This means that instead of asking companies such as Rogers and TELUS for the personal information of tens of thousands of subscribers, so that the police can determine which subscribers to investigate further (presumably those in the proximity of more than one crime scene), the telecom companies could do this work themselves, and disclose only the information of subscribers that meet particular criteria. In effect, this type of practice would require and entrust intermediaries to do as much of the initial investigatory work as possible, handing over only the information that police need to proceed further. This particular guideline is meant to limit the privacy impact of such disclosures, since the judge notes that personal information in the hands of police can be vulnerable to being “hacked” [20], and that police in possession of such data are not subject to conditions on data retention [59-60].
For me, the unanswered question is: why Rogers and TELUS? There are larger players than TELUS in Ontario, but this is a company that has pushed back before against such overreach. If the police had no idea who the suspects or their mobile providers were, did they obtain production orders for all mobile providers, and only Rogers and TELUS pushed back? If so, did other companies fail their customers as privacy custodians by not opposing such orders?