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Wireless companies’ data policies under scrutiny

|Written By Ron Stang

WINDSOR - A mistrial in a Windsor murder case could have national implications for wireless providers, particularly Telus Communications Co., on the issue of complying with orders to make customer cellphone data available to the courts.

The new cellphone evidence could benefit either the defence or Crown, says Maria Carroccia.

On trial was Kenyatta O’Neil Brown, 29, over the July 2009 stabbing death of Nicholas Ingram, 24, in a parking lot at the Leopard’s Lounge strip club.

The trial was into its fifth day late last month when a lawyer for Telus, Scott Hutchison, told Superior Court the company had learned there was additional information on seven witnesses’ cellphone records that it didn’t originally release after receiving a court order last August.

Telus spokesman Shawn Hall calls it an “unintentional oversight.”

“Very recently, [we] learned that we may have held a small amount of individual information in physical background tapes beyond the 30 to 59 days that we typically keep customer records before purging them,” he says. “That was not turned up in the first search.”

The company also keeps backup tapes containing immense amounts of data for a couple of years for “systems recovery” in the event of emergency or disaster, he adds.

“It’s a standard practice that all telecommunications companies have. And the data in the tapes is measured in terabytes. They’re huge. And they’re not really intended for this purpose.”

Now, however, in addition to the Windsor case, Telus must go back and comb for information it may have missed in numerous other court requests.

The company receives thousands of such orders yearly, Hall notes. “They would range from wiretap requests through to requests for phone records, information about text messages, the whole gamut.”

“It’s unclear at this time exactly what or how much additional information we will be able to turn up,” he says, noting Telus is developing new technology “that would allow us to go back in and ferret out the specific pieces of information.”

Hall points out that the company, which has a staff of 20 people working full time on retrieving such information, found the additional evidence during routine security checks. It will be turned over to the court at the end of January. A new trial has been scheduled for April.

The defendant’s lawyer, Maria Carroccia, brought the motion for mistrial over the records, some of which relate to Crown witnesses who had Telus pay-as-you-go accounts.

According to Carroccia, some of them were at the scene of the murder while others were in different locations but were affiliated with the defendant or the deceased. She agrees the new evidence could cut both ways in terms of benefiting either her client’s or the Crown’s case.

“Absolutely, we don’t know,” she says.

While available voice mail evidence reveals only when a call was made and how long the parties talked, there’s critical information in text messages. “The actual content of the texts was maintained and is printed out,” Carroccia says. “The phone calls themselves aren’t recorded.”

“It may affect other cases,” she adds, noting she’s unsure whether it could reopen them. “Potentially, I don’t know. But there would have to be some demonstration that that would have made a difference.”

Andras Schreck, a vice president of the Criminal Lawyers’ Association, says Telus “has to be commended” for coming forward with the new information. But he notes the case is another example of “how fragile” the evidentiary process can be.

“Information that appears on its face to be reliable often turns out not to be,” he says. “I think it just goes to show how very careful everybody has to be when dealing with the criminal process.”

Windsor criminal lawyer Patrick Ducharme, who lectures on criminal procedure and trial advocacy at the University of Windsor Faculty of Law, also cautioned about how wide a net the courts can cast on gathering data and suggests a recent Supreme Court of Canada decision could have bearing.

The case, R. v. Morelli, deals with unreasonable search and seizure as it relates to personal computers. “Say they’re investigating somebody having to do with pornography and they go and grab the guy’s computer,” Ducharme says.

“A lot of times, what they do is they freeze the hard drive and then they go back through every aspect of the guy’s life. They look at his finances; they look at his e-mails; they look at his contacts; they look at any type of inappropriate conduct.

And they end up charging the person with lots of other offences because, once they have the computer, they can be extremely intrusive. So the [top court] said they have to be very directed.”

David Fewer, director of the Canadian Internet Policy and Public Interest Clinic at the University of Ottawa, has serious concerns about the length of time Telus was holding onto the tapes.

“There’s no legitimate need to keep this kind of information around this long,” he says, noting it’s “a data breach issue waiting to happen.”

Fewer also says it was “a bit disturbing to learn that Telus wasn’t aware that it was keeping data in this way.”

Requests for comment from other cellphone companies were unsuccessful. But Marc Choma, spokesman for the Canadian Wireless Telecommunications Association, says the industry “has a long history” of working co-operatively with law enforcement within the legal framework for access to communications and subscriber information.

Choma adds that wireless providers also “respect and protect” personal information but comply with lawful requests “as permitted by privacy legislation.”

Meanwhile, there are three bills before Parliament that would increase providers’ legal obligations.

They would force companies to provide basic subscriber information such as names and Internet protocol addresses; overhaul their systems to allow narrower surveillance of individuals; and give police more power to monitor a customer’s creation and transmission of data in real time.

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