The ability of Canada’s electronic spy agency and police departments to monitor residents’ digital communications is back in the news this week, with a report in The Globe and Mail on how close the Harper government came to introducing legislation to limit the power of Communications Security Establishment Canada (CESC), and a column on a recent court case.
That case involved an attempt by Peel Regional Police, a department which covers the cities of Mississauga and Brampton just west of Toronto including Pearson International Airport to get a so-called dump of cell tower data from Rogers Communications and Telus Corp. As outlined by University of Ottawa law professor Michael Geist, Peel properly got a warrant for the data. But the carriers objected, saying the warrant was too broad.
Here’s what the police sought, as summarized by the judge hearing the objection: “Cell phone records for all phones activated, transmitting and receiving data through 21 specified Telus towers and 16 Rogers towers … the name and address of every subscriber making or attempting a communication and the particular cell tower being utilized … information regarding the recipient must also be provided and the cell tower the recipient used must also be provided. The orders also require billing information which may include bank and credit card information.”
Telus figured it would have to disclose the personal information of at least 9,000 individuals. Rogers estimated that it will be required to do 378 separate searches and retrieve approximately 200,000 records related to 34,000 subscribers to comply with the warrant.
When the telcos objected, Peel tried to withdraw the request before a justice of the peace so it could make the request narrower, but that was refused, bringing the matter before a Superior Court justice. There, Telus and Rogers said the broad Peel request was a violation of the Charter of Rights, while a Crown lawyer asked the judge to allow the original warrant to be withdrawn.
The judge agreed, saying Peel could go ahead with a narrower request for data before a justice of the peace (whether that order is seen by Rogers and Telus to be lawful has yet to be determined).
But the judge did say he’d arguments on whether the original order violated the Charter of Rights, in essence as a test case. “The privacy rights of the tens of thousands of cell phone users is of obvious importance,” the judge wrote. “Production orders [an order to produce information] are typically made on an ex parte application [that is, by the police without notifying the affected persons] so it is unlikely that the issuing justice has detailed information regarding the contractual relationship between the telecommunications provider and its customers and, therefore, the customer’s reasonable expectation of privacy.”
No date has been set but the case will be heard before the end of October.
The wireless world gives police a wide range of opportunities for evidence gathering it didn’t have before without eavesdropping on actual conversations. The limits on how much it can collect — even with a court order — are about to be tested.
Note that the Supreme Court of Canada in June ruled that police can’t ask for basic subscriber information from Internet service providers without a warrant.
Also today the Globe and Mail reported that the Harper government was ready several years ago to fill in a hole in legislation that gave the defence minister permission for CSEC, Canada’s electronic spy agency, the ability to intercept communications in exceptional circumstances. The current legislation can be broadly interpreted behind closed doors. And as the article says, several CSEC watchdogs have warned about that from what they’ve been able to see.
It seems here’s another case where some body should be testing the limits of a law enforcement body.