Canada and US Continue to Diverge on Geolocational Privacy

Canada and US Continue to Diverge on Geolocational Privacy

Just because technology now exists to track a person through their mobile phone does not mean you are legally entitled to do so.  This was the main conclusion by the Supreme Court of New Jersey in their unanimous, groundbreaking geolocational privacy decision in State v. Earls.

The decision originates from an investigation to track down a home burglary suspect. On the day of the eventual arrest, police contacted T-Mobile to track a cell phone they believed the suspect was using. T-Mobile provided the information to police at three times throughout the evening. The police had a warrant for the arrest, but not for the three traces. The suspect was found using the T-Mobile device at a motel, along with some of the stolen goods.

The Supreme Court allowed the arrest and criminal charges to stand, however, the plain-view evidence seized as a result of the geolocation data that the police gathered without obtaining a warrant was not valid. The State attempted to use the "emergency aid doctrine," which would provide them an exception to the warrant requirement, but failed.

The Privacy Arguments
The privacy issues at work here break down into three key components. Firstly, mobile phones collect an incredible amount of personal information. Secondly, a reasonable person should not expect this private information to be distributed without consent. Thirdly, mobile phones could be seen as no longer a luxury, but a foundational part of one’s daily life. It is not reasonable to expect people to opt out of mobile phone use in order to maintain their privacy. These are enforced in the reasons for judgment,

With increasing accuracy, cell phones can now trace our daily movements and disclose not only where individuals are located at a point in time but also which shops, doctors, religious services, and political events they go to, and with whom they choose to associate. Yet people do not buy cell phones to serve as tracking devices or reasonably expect them to be used by the government in that way... Using a cell phone to determine the location of its owner can be far more revealing than acquiring toll billing, bank, or Internet subscriber records. It is akin to using a tracking device and can function as a substitute for 24/7 surveillance without police having to confront the limits of their resources. It also involves a degree of intrusion that a reasonable person would not anticipate... Finally, cell-phone use has become an indispensable part of modern life. The hundreds of millions of wireless devices in use each day can often be found near their owners -- at work, school, or home, and at events and gatherings of all types. And wherever those mobile devices may be, they continuously identify their location to nearby cell towers so long as they are not turned off.

The court also leaned on the New Jersey State Constitution Article 1, Paragraph 7, which states,

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the papers and things to be seized.

This legislative right was interpreted by the court to include “a reasonable expectation of privacy in the location of their cell phones."

This is a natural extension and validation of the United States Supreme Court’s 2012 decision in United States v. Jones. In this unanimous judgment, the court found monitoring of a vehicle’s GPS system to be a form of illegal search and seizure.

Canada's Privacy Policy
Though Canada has similar search and seizure protection in the Charter, the judiciary has been going in a distinctly different direction from the US courts when it comes to interpretation, as evidenced by some recent Ontario decisions.

In 2010, the Ontario Superior Court of Justice ruled on the admissibility of evidence seized during a search warrant in R v. Morgan and Smith.  Similar to the New Jersey case, the police used Bell Canada’s GPS capabilities to locate a stolen cell phone in order to execute their search warrant.

Though the court did find a violation of the defendants’ Charter Section 8 “right to be secure against unreasonable search or seizure,” it did not find so because of the mobile phone GPS search. The court set a contribution threshold based on GPS-to-arrest timing and accuracy, which it then found had not been met.

Let me deal with the cell phone location evidence.  The Bell search found that the stolen cell phone was at the Pearson and Abelard area at about 10:35 p.m. It is only information as to where the cell phone was at a particular moment in time. The culprits might have been driving through the area at the time.  It might have been much more persuasive if Bell had found the cell phone there for an extended period of time and it could have been pinpointed with more accuracy.  This additional evidence was necessary given the lack of other evidence in this case. (Para 52)

In more recent news, the Ontario Court of Appeal passed on another opportunity to guarantee mobile phone privacy in R v. Fearon. The court found it acceptable for police to search mobile devices without an additional phone-specific warrant if the phone had no password protection. In the case of smartphones, this ability for police to seize and explore the phone could certainly disclose the user’s locational data history among other types of personal, private information.

The demand to recognize geolocational privacy is widespread. It is the next privacy frontier and we need better protection in this area.

It’s disappointing that the Canadian courts have thus far leaned toward reducing protections on privacy and not increasing them. This is particularly true in the Canadian context because telecommunications are so heavily regulated and Canadians have fewer options when choosing a provider. When our choices are reduced, our consumer bargaining power to demand that these companies refuse police requests for our locational information is diminished.

When the courts refuse to step up, the legislators must. In my opinion, the federal government needs to pass privacy protections that restrict police power to use our mobile devices against us without the necessary warrants.

Denise Brunsdon is an IPilogue Editor and a JD/MBA Candidate at Western University.