Canadian Supreme Court Says Privacy Protections Apply To Sent Text Messages Obtained From The Recipient

from the fresh-take-on-stale-privacy-laws dept

In the US, the Fourth Amendment protects the privacy of conversations… up to a point. The government can't open mail or intercept phone calls without a warrant. Thanks to a fairly recent Supreme Court decision, the government can't access the contents of a person's phone -- home to a great many conversations -- without a warrant.

But the Fourth Amendment only covers so much. It doesn't stop the recipient of communications from revealing them to anyone else, the government included. Any person can hand over communications to the government voluntarily even if the sender of those messages assumed -- or stated -- they were supposed to be confidential. This is part of the reason why the "going dark" problem has been overstated. The government has multiple ways to access communications without having to crack open a cell phone.

Communications are only as private as all participants feel they are. That's the way the Fourth Amendment has been read in the US. In Canada, there's an equivalent protection under Section 8 of the Canadian Charter of Rights and Freedoms. Contents of communications require warrants to access and the searches themselves must be "reasonably" supported by probable cause.

Canada's highest court has found, in contrast to US judicial views, an expectation of privacy can still be found in messages sent to someone else -- even if those messages are retrieved from the recipient.

In a potentially significant 5-2 ruling*, the high court set aside the convictions against Nour Marakah, whose messages were found by Toronto police on the mobile phone of an alleged accomplice.

The court said Marakah had a reasonable expectation of privacy concerning the messages, meaning he had a right to challenge the police search of the phone as a violation of his guarantees under the Charter of Rights and Freedoms.

In her reasons for the majority, Chief Justice Beverley McLachlin noted that Marakah was the author of the text messages introduced as evidence against him, that he expected the electronic conversation to remain private and that he asked recipient Andrew Winchester numerous times to delete the messages.

*[Note: Ruling not provided by the Globe and Mail for whatever reason. -1 to G&M's JOURNALISM skill.]

There's no bright line being drawn, despite initial appearances, but it will make it much easier for defendants to challenge evidence obtained without a warrant from the recipient of messages. The court [PDF] has this to say about the bar defendants must reach to basically challenge warrantless searches performed on someone else.

Text messages that have been sent and received can, in some cases, attract a reasonable expectation of privacy and therefore can be protected against unreasonable search or seizure under s. 8 of the Charter. Whether a claimant had a reasonable expectation of privacy must be assessed in the totality of the circumstances. To claim s. 8 protection, claimants must establish that they had a direct interest in the subject matter of the search, that they had a subjective expectation of privacy in that subject matter and that their subjective expectation of privacy was objectively reasonable. Only if a claimant’s subjective expectation of privacy was objectively reasonable will the claimant have standing to argue that the search was unreasonable.

The court says there's perhaps nothing so inherently private as a text message -- a conversation that can't be overheard by anyone in close proximity nor even observed with any certainty by those in the immediate vicinity.

The millions of us who text friends, family and acquaintances may each be viewed as having appropriated a corner of this electronic space for our own purposes. There, we seclude ourselves and convey our private messages, just as we might use a room in a home or an office to talk behind closed doors.

Because texting is an inherently private act, the court finds privacy cannot be dispelled simply by approaching other participants in a private conversation.

An individual does not lose control over information for the purposes of s. 8 of the Charter simply because another individual possesses it or can access it. Nor does the risk that a recipient could disclose an electronic conversation negate a reasonable expectation of privacy in an electronic conversation.

The government obviously did not expect the Supreme Court to reach this conclusion. It made a significant concession which has come back to haunt it.

The Crown concedes that if M had standing the search was unreasonable. The text messages are thus presumptively inadmissible against him, subject to s. 24(2) of the Charter.

That concession, along with actions the police took to access the messages, sees the Supreme Court tossing the obtained evidence along with the conviction.

In considering whether this evidence should be excluded under s. 24(2), society’s interest in the adjudication of M’s case on its merits is significant. The text messages offer highly reliable and probative evidence in the prosecution of a serious offence and their exclusion would result in the absence of evidence by which M could be convicted. This favours admission. However, the police conduct in accessing and searching the electronic conversation through W’s iPhone without a warrant two hours after his arrest was sufficiently serious to favour the exclusion of the evidence. This breached s. 8 of the Charter not only because of the extent of the search, but also because of its timing. On the application judge’s findings, this simply was not a search incident to arrest. In addition, the police conduct had a substantial impact on M’s Charter-protected privacy interest in the electronic conversation. On balance, the admission of the evidence would bring the administration of justice into disrepute. It must therefore be excluded under s. 24(2).

With this unusual ruling, things will get more difficult or more streamlined for law enforcement access to communications, depending on how you view it. It will be more difficult because cops won't be able to perform warrantless searches of devices owned by text message recipients. But it will make law enforcement's job easier in a way. When targeting communications, warrants will be needed if the government wants to guarantee its evidence survives a challenge.

This ruling puts text messaging roughly on the same judicial grounding as wiretaps. In both cases, law enforcement is able to access communications between people, even if only one person is actually the investigation's target. The same thing happens here: if cops want complete conversations, albeit ones delivered through messaging services, they'll need warrants to access them from either end.

Things are shifting dramatically in the upper reaches of judicial systems as a response to a sea change in preferred communication methods. Wiretaps on landlines used to be the ultimate invasion of privacy, subject to multiple restrictions. Just because these communications have shifted from landlines to text messaging shouldn't mean they're afforded less privacy just because of the route they've taken.

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Filed Under: canada, expectation of privacy, privacy, supreme court, text messages, third party doctrine