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Criminal needles and lawful haystacks

Published on February 2, 2016

Summerside is a lovely place to visit — and if you’re in P.E.I., you should definitely take the time to get there, if for no other reason than a September sunrise over the fields where Read Drive meets Route No. 2, hay bale dogs and all.

But for the purpose of this column, with a population of just 14,751 in 2011, Summerside’s just not big enough — keep that in mind.

Truro, N.S. or New Glasgow? Put the two together, and you’d only have a combined population of 21,621. Sydney, N.S.? Closer — 31,597 in the same year.

St. John’s, N.L.? Too big — 196,966.

But Charlottetown, P.E.I., with a population of 34,562 in 2011? Now, we’re getting closer.

Stop and imagine that there were a series of three armed robberies in Charlottetown, and that the police had an idea to catch the robbers. They’d simply download the data from every single cellphone user in the city — and more from the outskirts of the city — to see if anyone could be pinpointed as having been in the area of all three stores that were robbed, at the time they were being robbed.

Hey, presto! A new way to find a needle in a haystack.

But it does sound a little intrusive, doesn’t it?

It is, however, exactly what the Peel Regional Police wanted to do to find a group of jewelry store robbers in their jurisdiction. They went to a justice of the peace and asked for a production order compelling cellphone companies to hand over information on every caller whose phones were in touch with 47 different cellphone towers. The process is called a “tower dump,” and in that particular case, would include data on a minimum of 43,000 cellphone users.

Here’s how a judge described those orders: “The production orders require the name and address of every subscriber making or attempting a communication through the particular cell tower. … The production orders also require billing information which may include bank and credit card information.”

The police didn’t say what they wanted the information for, how long they planned to keep it, or even what they were going to do with it, let alone how they were going to store it securely. But the justice of the peace granted the order.

When Rogers and Telus challenged the orders, the judge agreed something was amiss. (The police argued only individuals whose data was obtained had a right to complain, but, in a catch-22, users would never know their data had been captured or, in other words, that they had anything to be complaining about.)

The judge? “Common sense indicates that Canadians have a reasonable expectation of privacy in the records of their cellular telephone activity. Whether and when someone chooses to contact a divorce lawyer, a suicide prevention hot line, a business competitor or a rehabilitation clinic obviously implicates privacy concerns. The location of a person at a particular time also raises privacy concerns. Was the person at the Blue Jays game instead of at work?”

The end result is that Ontario Supreme Court Justice John Sproat tightened up the process, issuing guidelines that would require more focused information-gathering — in fact, information-gathering directed at the perpetrators, not the public at large.

The only question?

Why would a Canadian police force believe that such a large harvesting of the private information of law-abiding citizens was legal in the first place?

 

Russell Wangersky is TC Media’s Atlantic regional columnist. He can be reached at russell.wangersky@tc.tc — Twitter: @Wangersky.