Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m O C T O B E R 2 0 1 7 3 hould the police be able to track who you call or text and where you are located throughout the day even when you are not suspected of any crime? Most people would not hesitate, I suspect, to say no. If you are a lawyer, having that information tracked may be even more problematic if it is a phone you use for work. It could even vio- late solicitor-client privilege if the data is interpreted in the right way. But that is what is happening now when police order what are known as "tower dumps." As our cover story outlines (p. 28), this technology allows police to obtain subscriber data and call records of anyone who used their mobile devices near a specific cell tower. Tower dumps are shrouded in secrecy, but there is no doubt the police are using this technology on a regular basis, as well as similar tools that impersonate actual cell towers and trick phones into attaching to them and disclosing phone log and location information. Why should lawyers care? Because, in addition to the personal risk of a viola- tion of solicitor-client privilege, lawyers are uniquely placed to highlight the risks — and realities — of how these tools are being used. They are also well positioned to provide solutions to the current situation. Defence lawyers, Crown counsel and judges all see this data when it is dis- closed in court, and many are speaking up about the risks. But as defence lawyer Michael Moon points out in our story, unless they uncover information that may negatively impact a client, there is no reason for defence lawyers to challenge these sweeping orders. Crown counsel would likely want the evidence if it is help- ful to their case or simply ignore it if it is not. Judges have sometimes reigned in the use of these technologies, but expecting the courts to be the only institutions to do this is not a long-term strategy. Traditional wiretaps on phones have a rigorous legal regime built up to provide accountability, but the rules have not caught up to the new tools and there is no legislated oversight of these new kinds of police requests. Apart from the judges who have provided guidelines in individual cases, the only form of accountability has been from challenges to the scope of tower dumps fought by telecoms such as Rogers and Telus. Creating a legal regime is clearly the role of the government, but the legal pro- fession needs to step up to pressure our government to do this. Lawyers, as a pro- fession, are uniquely placed to understand the benefit of setting down rules and guidelines so that police know what they can and can't do and how to best protect the privacy rights of the public. Criminal lawyers, Crown counsel, privacy law experts and all lawyers who can imagine their own or their client's information being unintentionally disclosed to the police can play a role. E D I T O R ' S D E S K @canlawmag tim.wilbur@tr.com Director/Group Publisher: Karen Lorimer karen.lorimer@tr.com Managing Editor: Tim Wilbur tim.wilbur@tr.com Associate Editor: Mallory Hendry mallory.hendry@tr.com Copy Editor: Patricia Cancilla Art Director: Bill Hunter Production Co-ordinator: Catherine Giles catherine.giles@tr.com Contributors: Shannon Kari, Michael Ganley, donalee Moulton, Mark Cardwell, Geoff Ellwand, Jean Sorensen, Marg. Bruineman, Mallory Hendry, Jim Middlemiss, Elizabeth Raymer, Alex Robinson Canadian Lawyer is published 11 times a year by Thomson Reuters Canada Ltd. All rights reserved. Contents may not be reprinted without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Canadian Lawyer disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. 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M1T 3V4 RETOURNER TOUTE CORRESPONDANCE NE POUVANT ÊTRE LIVRÉE AU CANADA AU SERVICE DES PUBLICATIONS One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON. M1T 3V4 Circulation/Address Changes/ Subscriptions Keith Fulford Tel: (416) 649-9585 Fax: (416) 649-7870 E-mail: keith.fulford@tr.com Subscription rates: Canada1 year print and digital $102 plus HST, 1 year digital only $99. Outside Canada 1 year print & digital $99 USD, 1 year digital only $99. For all circulation inquiries and address changes send a copy of your mailing label or labels along with your request in writing to Canadian Lawyer, One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON. M1T 3V4 Sounding the privacy alarm By Tim Wilbur S

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