by John L. Hill
The Privacy Commissioner of Canada has ruled against the Correctional Service of Canada in finding that the use of a cell site simulator illegally collected cell phone conversations and text messages in the vicinity of Warkworth Institution.
Several complaints were filed with the Privacy Commissioner when it was revealed that the Correctional Service was monitoring cell phone activity between February and September 2015. The CSC argued the monitoring was to discover if inmates who are prohibited from using cell phones were doing so, presumably to arrange contraband importation. No inmate activity was recorded but phones belonging to staff members, visitors to the institution and nearby residences were picked up.
A contract investigator was hired to collect the signals. The Privacy Commissioner found that metadata as well as six text messages were intercepted by the cell site simulator. Metadata includes phone numbers involved in a call, the carrier used and duration of the call. The data collected include cell phone metadata, text messages and in one instance, nicknames capable of identifying specific individuals.
The Privacy Commissioner found that it was within the CSC mandate to determine if cell phone usage by inmates existed but the collection of six text messages was in violation of the Privacy Act. CSC was held accountable even though the contractor hired to investigate was ordered not to collect personal communications.
The ruling does not rule out future use of electronic eavesdropping equipment. However, the Privacy Commission warned that any future use requires the CSC to conduct a Threat Risk Assessment and the prior submission of a Privacy Impact Assessment before Treasury Board approval is given.
Whether staff members or others whose privacy has been breached can sue civilly for what the Ontario Court of Appeal calls “intrusion into seclusion” was not addressed in the ruling.