Everywhere we go, our cellphones are creating virtual records of our movements. This location data can be a powerful tool for tracking down spies or investigating murders. But there is also potential for this data to be misused against innocent people, which is why democracies have safeguards in place like requiring judges to sign off.
The Covid-19 crisis is testing these safeguards. In Israel, Prime Minister Benjamin Netanyahu used his emergency powers to authorize the spy agency Shin Bet to collect data on the movement and contacts of anyone with Covid-19. The data is being transferred to the Ministry of Health, which is reaching out to anyone who had been near the patients’ over a two-week period. The data is also being shared with police so that they can track the movements of people who have been ordered to self-isolate. Israel’s High Court of Justice said the data sharing is legal but requires oversight by a parliamentary committee.
Politicians in Canada, including Quebec Premier François Legault and Ontario Premier Doug Ford, have said that they too are considering authorizing police forces to collect and use this kind of data, but some police forces aren’t even waiting for an emergency decree. A spokesperson for Quebec’s provincial police told La Presse that officers can use location data without a court’s approval, and Quebec City Police Chief Robert Pigeon told The Canadian Press that his officers have already used a woman’s phone data to arrest her for violating an order to self-isolate.
Although it may justifiable in certain circumstances, using cellphone data to track people’s locations is an invasion of their privacy. Can police really do that?
Toronto criminal lawyer Sean Robichaud says that he expects some lawyers will argue that using cellphone location data to track Covid-19 patients is a violation of the constitutional right under section 8 of the Charter of Rights and Freedoms to be “secure against unreasonable search or seizure.” However, Robichaud says he believes that courts would see these searches as reasonable and therefore legal, whether they are authorized by emergency decrees or not.
In 2017, the Supreme Court of Canada looked at whether the police could access text messages sent by a suspect and stored by Telus. Justice Suzanne Côté wrote that “protection of personal privacy is accordingly a basic prerequisite to the flourishing of a free and healthy democracy.” However, Justice Côté also said that police can demand the text messages if “authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable.” This same standard would likely apply to any emergency decree allowing police to access location data in order to enforce a quarantine.
But can police force cellphone companies to turn over location data of Covid-19 patients without such a law in place? Robichaud believes they can. The court has already said on multiple occasions that police don’t need warrants when the circumstances are “exigent,” or pressing. Robichaud points to the case R v Godoy as an example. In R v Godoy, police were sent to an apartment where someone had used a landline to call 911, and the line had become disconnected before anyone had spoken. The police had no warrant, and the man who answered the door didn’t give them permission to enter. Police forced their way in. They found a sobbing woman and with swelling above her left eye, who told police that her common law husband had hit her. A lower court said that the police’s entry was an unconstitutional search, but the Supreme Court disagreed, saying that police were justified in entering. Antonio Lamer, who was then chief justice, wrote that “the intrusion must be limited to the protection of life and safety.”
Robichaud says that preventing a Covid-19 patient from leaving her home would be at least as pressing of a threat to “life and safety” as the mere fact of a 911 call, so courts are likely to find that using cellphone location data to track a Covid-19 patient without a warrant is justified.
What about using cellphone data to find out whether people are flouting new bylaws that require people who don’t live in the same household stay at least two metres apart? Toronto Mayor John Tory told The Logic last month that he had obtained this type of data but later denied it. Robichaud says he believes courts would consider this type of sharing constitutionally sound, but he worries that it could mark the beginning of a slippery slope. For example, a future government might to try to force a cellphone company to give it live updates on where anti-government protesters are gathering. Chinese social media giant Tencent already provides this kind of information to the Chinese government to help it quash political dissent.
The bottom line, according to Robichaud, is that “courts will likely uphold good-faith efforts to curtail Covid-19 using police powers.”
“[But] when this ultimately subsides, there needs to be a powerful recalibration to go back to where we were before to ensure these encroachments on civil liberties don’t continue for other goals,” he adds. “We just have to be vigilant that these new realities of police powers don’t become a permanent thing.”
