The Supreme Court of Canada issued its decision in R. v. Fearon today, a case involving the legality of a warrantless cellphone search by police during an arrest. Given the court’s strong endorsement of privacy in recent cases such as Spencer, Vu, and Telus, this seemed like a slam dunk. Moreover, the U.S. Supreme Court’s June 2014 decision in Riley, which addressed similar issues and ruled that a warrant is needed to search a phone, further suggested that the court would continue its streak of pro-privacy decisions.
To the surprise of many, a divided court upheld the ability of police to search cellphones without a warrant incident to an arrest. The majority established some conditions, but ultimately ruled that it could navigate the privacy balance by establishing some safeguards with the practice. A strongly worded dissent disagreed, noting the privacy implications of access to cellphones and the need for judicial pre-authorization as the best method of addressing the privacy implications.
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Last year’s explosive battle over the potential entry of wireless giant Verizon into the Canadian market may be a distant memory, but the debate over the state of wireless competition remains very much alive. Industry Minister James Moore has pointed to a modest decline in consumer pricing and complaints as evidence that government policies aimed at fostering a more competitive market are working.
The big three wireless carriers remain adamant that the Canadian market is competitive and that while pricing may be high relative to some other countries, that is a function of the quality of their networks. In other words, you get what you pay for.
There is seemingly no major international entrant on the horizon, but the Canadian Radio-television and Telecommunications Commission is currently grappling with an assortment of policy measures aimed at improving the competitiveness of new entrants and facilitating the development of a more robust market for virtual operators who could enhance consumer choice. Moreover, the government is planning another spectrum auction early next year that would benefit new entrants.
My weekly technology law column (Toronto Star version, homepage version) notes that at the heart of the debate is whether creating a fourth national carrier is a legitimate policy goal or a mirage that will do little to decrease pricing or create market innovation. The major carriers argue that the Canadian market is too small to support a fourth national carrier and that competitiveness is not directly correlated to the number of national operators.
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Fresh off the contentious hearing on the future of television regulation, the Canadian Radio-television and Telecommunications Commission jumped back into the fire last week with a hearing on the wireless market that focused on whether changes are needed to the wholesale market to improve competition.
The Big 3 – Bell, Telus, and Rogers – unsurprisingly opposed new measures, arguing that the Commission should reject the Competition Bureau’s independent finding that there are competition concerns along with the smaller players and consumer groups that support new regulations. Instead, they argue that Canadians can trust that the market is already competitive and that reforms would reduce investment and harm the quality of the networks.
My weekly technology law column (Toronto Star version, homepage version) notes that if that message evokes a sense of déjà vu, perhaps that is because it is seemingly always a matter of trust when it comes to Canadian wireless services.
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Last month, media reports covered a recently released Ontario court decision involving a Peel Regional Police warrant application for subscriber data from Telus and Rogers. The two telecom companies challenged the order, arguing that it was overbroad. The police withdrew the order in favour of a more limited request, but the court decided that the Charter issues raised by the request should still be examined.
The money quote from the judge – “the privacy rights of the tens of thousands of cell phone users is of obvious importance” – captured the attention, but the case is more interesting for the data it provides on police warrant applications for subscriber data. The case reveals that Telus received approximately 2,500 production orders and general warrants in 2013, while Rogers produced 13,800 files in response to production orders and search warrants that year.
Even more interesting is how the police were seeking access to a huge amount of subscriber information by asking for all records involving dozens of cell phone towers, including subscriber data, billing information, bank data, and credit card information. The specifics as described by the court:
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In the aftermath of the Supreme Court of Canada’s Spencer decision, several leading Canadian ISPs have publicly announced that they have changed their practices on the disclosure of subscriber information (including basic subscriber information such as name and address) to law enforcement. For example, Rogers announced that it will now require a warrant or court order prior to disclosing information to law enforcement except in emergency situations. Telus advised that it has adopted a similar practice and TekSavvy indicated that that has long been its approach. SaskTel says that it will release name, address, and phone number.
Unlike its competitors, Bell has remained largely silent in recent weeks. In media reports, the company says little more than that it follows the law. In fact, the Toronto Star’s Alex Boutilier tweets that the company is now declining to respond to journalist inquiries about the issue. In the past, the company was a clear supporter of disclosing “pre-warrant” information in some circumstances to law enforcement. As detailed in this Canadian Bar Association article:
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