Legal Research

Cell Phones, Location and Privacy

By John Gregory

Two stories on cell phones, with a question or two:

1. An article from London Review of Books (”Short Cuts” by Daniel Soar) on how cell phone location records and use records can categorize the users — for marketing, for finding terrorists (or people who may be terrorists …), etc.

Is there a cure for this, besides just using land lines?  Or is it a problem, rather than an opportunity?

2. A judicial decision in US district court [opinion of Magistrate Judge | order on appeal] saying that the state needs reasonable and probable grounds before getting cell phone records from the phone company to trace people.  The Washington Post has the story.

I believe Canadian cases go the other way (as do a couple of US cases, according to the headnote to the WP story). There was one in which cell phone records were used to place the accused at the scene of several similar crimes. I don’t think there was any fuss at all about the police having just asked the company for records — tied to a particular phone, as I recall — and the company just giving them to the police.See also E-Tips’ story from November 2005 on US case law, citing a couple of decisions where cell phone data was held not to be freely available to law enforcement; and an Australian story - speculative rather than case-based - from July 07.

What should the standard be?  Is this another case like getting ISPs to give the name of the user for whom the police (or other authorities?) have only an IP address and do the law enforcement provisions of PIPEDA contemplate a carte blanche to get records if it’s ‘law enforcement’, or do the law enforcement officials need some kind of independent (read judicial) authority before PIPEDA allows the holder of the information to turn it over. Or are the two kinds of data different?

Full post as published by Slaw.ca on September 18, 2008 (boomark / email).