Reasonable Expectation of Privacy during the COVID-19 Pandemic

We know that by-law and police officers are patrolling the streets and responding to complaints about individuals breaking social distancing rules. But what extraordinary tools, if any, are being used by law enforcement to ensure that people are complying with federal and provincial orders? Are telecommunications companies, like Bell and Rogers, sharing user’s location data to assist police in cracking down on those congregating in large groups? Are police tracking the whereabouts of individuals who have recently travelled outside of Canada?

Here’s an overview of your right to privacy during COVID-19, and what law enforcement officers can and cannot do under existing legislation.

What is Reasonable Expectation of Privacy?

Section 8 of the Charter of Rights and Freedoms guarantees that “everyone has the right to be secure against unreasonable search or seizure”. However, this right is subject to certain limitations. Courts have recognized that one’s privacy rights should not trump the legitimate state and public interest in effective law enforcement. In other words, our privacy interests are not absolute – they can be reasonably curtailed, depending on the circumstances.

covid-19 privacy rights cell phone data

Associate lawyer Minu Walia explains how privacy rights interplay with the COVID-19 pandemic in Canada. 

In determining whether an individual maintains a reasonable expectation of privacy over the item being searched, a number of factors need to be assessed, such as possession or control of the property or place being searched and the ability to regulate access to it.

For instance, there is no reasonable expectation of privacy over tweets posted on a public twitter account, since these posts are readily accessible to any user on the internet. On the other hand, an individual maintains a reasonable expectation of privacy in their home, as it is the place where most of their intimate and private activities take place.

Judicial Authorization to Obtain Cellphone Data

Individuals maintain a reasonable expectation of privacy over their cellphone transmission data, since it has the capability to expose personal information about them, such as their movements, people they communicate with, and the nature of their communications. Consequently, law enforcement officials are prevented from arbitrarily collecting cellphone transmission data.

In order for the police to acquire cellphone data from telephone service providers, such as Telus or Rogers, they must obtain a production order.

A production order is similar to a search warrant, which allows the police to search and seize items. When a person is presented with a production order by police, they are required to provide the information being sought. There are specific production orders that are required to obtain certain precise information, such as cellphone transmission data and tracking data. Transmission data includes details regarding the origin, destination, date, time, duration, and type of communication, but does not include the contents of those communications. In contrast, tracking data provides the location of the thing or individual in question.

Before a production order for transmission or tracking data is issued, the police must satisfy the Court that 1) there are reasonable grounds to suspect that an offence has been or will be committed under the Criminal Code or any other Act of Parliament, and 2) that the document or data being sought will yield evidence in relation to the offence being investigated.

How Can These Tools be Used to Enforce COVID-19 Measures?

Well, here’s a hypothetical scenario. Let’s say you have recently travelled abroad and are returning back to Canada. As a result of the Emergency Order that was announced on March 25, 2020, all persons entering Canada are required to self-isolate for 14 days under the federal Quarantine Act. This law requires that you remain in your residence at all times, unless you have a medical emergency.  Failure to follow this order is considered an offence. Now, let’s presume you decide to go for walks, do your groceries, and visit family during this mandatory 14-day isolation time period. Your neighbour notices you breaking the rules, and decides to make a complaint to law enforcement agencies.

Under these circumstances, the police could request a production order for historical cellphone tracking data in the possession of your telephone service provider, as there are reasonable grounds to suspect that you committed an offence contrary to the Quarantine Act. If the production order is issued, and the records corroborate your neighbour’s complaint, you could be charged with (and later found guilty of) failure to comply with the Emergency Order under the Quarantine Act.

This offence carries a maximum penalty of $750,000 and/or six months imprisonment.

Privacy Rights During a State of Emergency

COVID reasonable expectation of privacy quarantine act

Under the federal Emergencies Act, the government also has the power to enact orders and regulations that would otherwise contravene civil liberties which are constitutionally protected once a state of emergency is declared. For example, the federal government can limit individuals right to travel to, from or within a specified area, and enact any regulations to help enforce those orders. In other words, if the government deems it necessary to obtain cellphone tracking data from telephone service providers to manage the COVID-19 pandemic, they are empowered to do so. As of right now, although provincial governments have declared a state of emergency, the federal government has not.

Pursuant to the Emergency Management and Civil Protection Act, municipalities are permitted to make orders that promote public health and safety in times of emergency; however, these orders must be consistent with the Canadian Charter of Rights and Freedoms. If the provincial government intends to obtain and use cellphone data as a means of preventing the spread of COVID-19, they must ensure that proper checks and balances are instituted so that individual’s privacy interests are minimally infringed. This could mean the use of anonymous location data that does not reveal identifying information, such as a person’s name and address. Furthermore, in order to guarantee that these laws are consistent with existing privacy laws, the provincial government will need explicitly outline clear rules for the collection, retention and distribution of this cellular data during the state of emergency.

City officials in Toronto have taken the position that they are not using cellphone data obtained by telephone service providers to track people’s whereabouts. When Premier Doug Ford was probed about this tracking technique as a mechanism to enforce social distancing, he advised that “everything’s on the table”. Countries around the world, like Singapore and Israel, have adopted stringent cellphone tracking technologies to map the spread of COVID-19 and enforce social distancing measures. Will Canadians follow suit and give way to increased surveillance by the state?

Only time will tell.