On Wednesday, the Supreme Court of Canada held that an accused person had no reasonable expectation of privacy in detailed information about his residential power consumption over a period of time. The decision contains a significant dialog about the disclosure of customer information to law enforcement and, in such circumstances, the effect of terms governing the customer relationship.
An digital recording ammeter (or “DRA”) is a device that is installed on a power line to measure electrical consumption. In this case, the police asked an electrical service provider to install one to measure electrical consumption at a residence they suspected of housing a grow-op. The service provider agreed, and later produced a graphical representation of showing power consumption over five days. The graph showed a pattern of 18-hour cycles of high consumption, which is consistent with the presence of a marijuana grow-op. Partly on the strength of this evidence, the police obtained a warrant that led them to lay charges.
Whether the police violated the accused person’s reasonable expectation of privacy by conducting a warantless “DRA search” was the key issue in the case. It turned on (1) the effect of a regulatory provision promulgated under the Alberta Electrical Utilities Act that expressly permits Alberta service providers to disclose customer information to the police without consent unless contrary to their express wishes and (2) the quality of the electricity consumption information (and whether it went to the accused person’s “biographical core of personal information”). Note that the statutory permission, in the circumstances, was also backed by a contractual provision that warned the accused person that his information could be provided to law enforcement “for drug investigations.”
The Effect of Terms Governing Customer Information
A seven judge majority recognized the statutory permission as a relevant factor that weighed against a reasonable expectation of privacy.
For Deschamps J. (joined by Charron, Rothstein and Cromwell JJ.) the permission was a relevant factor. For Abella J. (joined by Binnie and LeBel JJ.) it was the dominant factor in the circumstances. In principle, the two majority judgments are similar.
Not so for the dissenting judges – McLachlin C.J. and Fish J. Here is a passage from their jointly written dissent:
Every day, we allow access to information about the activities taking place inside our homes by a number of people, including those who deliver our mail, or repair things when they break, or supply us with fuel and electricity, or provide television, Internet, and telephone services. Our consent to these “intrusions” into our privacy, and into our homes, is both necessary and conditional: necessary, because we would otherwise deprive ourselves of services nowadays considered essential; and conditional, because we permit access to our private information for the sole, specific, and limited purpose of receiving those services.
A necessary and conditional consent of this sort does not trump our reasonable expectation of privacy in the information to which access is afforded for such a limited and well-understood purpose. When we subscribe for cable services, we do not surrender our expectation of privacy in respect of what we access on the Internet, what we watch on our television sets, what we listen to on our radios, or what we send and receive by e-mail on our computers.
Likewise, when we subscribe for public services, we do not authorize the police to conscript the utilities concerned to enter our homes, physically or electronically, for the purpose of pursuing their criminal investigations without prior judicial authorization. We authorize neither undercover officers nor utility employees acting as their proxies to do so.
The response to this argument by the majority is remarkably subtle. Deschamps J. agrees that the reasonable expectation of privacy standard is normative, suggests that she is not prepared to make a general pronouncement about the constitutional effect of “disclosure clauses,” but says that terms governing a customer relationship are nonetheless one relevant factor of many in assessing the reasonableness of a privacy expectation. Significantly, however, Deschamps J. does argue that a service provider’s equal interest in information about the services it provides to its customers weighs against section 8 protection:
A final factor affecting the informational privacy analysis and diminishing Mr. Gomboc’s expectation of privacy in the information disclosed by the DRA is the fact that his interest in the electricity use data was not exclusive. His electricity consumption history was not confidential or private information which he had entrusted to Enmax. As the supplier of electricity, Enmax had a legitimate interest of its own in the quantity of electricity its customers consumed.
Abella J.’s judgment on this issue is similar. Like Deschamps J., she deflects the strong minority argument: “There can be no examination of the totality of the relevant circumstances without including the fact that the Regulation exists. It cannot, therefore, be seen as neutral or irrelevant.”
Biographical Core and Personal Information
Five of the nine judges held that information about residential power consumption over a period of time reveals an individual’s “biographical core” of personal information.
Deschamps J., in the minority on this issue, held that police use of DRA technology reveals only “information about electricity use” and not about the intimate and personal choices of the occupants of a residence. She holds that DRA data can support a very strong inference that a residence is being used as a grow operation, but not much else. Though information about criminal activity is protected by section 8, Deschamps J. suggests that DRA’s focus on information about criminal activity minimizes its impact and, remarkably, favours its use as a privacy protective surveillance technique.
McLachlin C.J. and Fish J. take great exception to Deschamps J.’s suggestion that the use of DRA can be justified by its focus on the collection of information about criminal activity: “First, the constitutionality of a search does not hinge on whether there are even more intrusive search methods the police could have improperly used.” Aside from making this rebuttal, McLachlin C.J. and Fish J. cite to a law review article for the proposition that hourly electricity data can reveal “personal sleep, work, and travel habits, and likely identify the use of medical equipment and other specialized devices.”
Like McLachlin C.J. and Fish J., Abella J. finds that DRA information reveals information of the kind protected by section 8. She doesn’t reach quite as far though, relying more on the DRA’s efficacy in revealing information about criminal activity itself and the more basic proposition that section 8 protects such information.
Whether in the name of corporate social responsibility or something else, most businesses do not wish their services to be used for criminal activity. There is a relatively indisputable public interest in allowing businesses to report crimes that they discover in dealing with customers, but the legality of asking business to hand over their customer information has been less certain. Accused persons have recently made arguments (similar to that made by McLachlin C.J.C. and Fish J.) that suggest the normative rule embodied in section 8 of the Charter makes businesses’ own interest in records of customer information and any privacy-reducing terms of contract irrelevant. Though somewhat qualified, this judgment suggests that customer information, in particular when governed by terms that permit disclosure to law enforcement, is less likely to be protected by section 8 of the Charter.