In late March, the Supreme Court of Canada released a decision that is proving to be a welcome reinforcement of the reasonable expectation of privacy for Canadians in their use of text messaging services.
In 2010, police in Owen Sound, Ontario, obtained a general warrant under the Criminal Code requiring telephone service provider Telus to turn over text messaging records of two of its subscribers who were under investigation. The warrant was granted at first instance, essentially treating text messages as subject to the general search and seizure rules under the Code. Telus appealed the matter all the way to the Supreme Court.
In a decision that received instant praise from the legal and technology sectors, the Supreme Court treated text messaging as akin to private verbal telephone conversations. To access such evidence, police are required to complete the more rigorous process of obtaining wiretap authorization (under Part VI of the Code), with stricter legal tests, thus better protecting the privacy rights of those subject to investigation.
Though the decision focused on Telus’ somewhat unique practice of maintaining temporary electronic records of its customers’ text messages, the decision reflects a broader consideration of the private nature of text messaging generally.
This is a welcome clarification of the law at a time when this relatively new technology continues to become a greater and greater part of our everyday business and personal lives.
Cellphone users have come to treat text messaging as a simple and logical extension of the cellphone “conversation” structure. Indeed, many verbal cellphone conversations begin and/or end with text message exchanges. It is reasonable for users to expect that their text discussions are equally private as their verbal phone conversations.
As Madam Justice Abella noted, “despite technological differences, text messaging bears several hallmarks of traditional voice communication.” Text messaging often involves long, in-depth exchanges back and forth between participants. Indeed, as users improve their thumb-typing skills, and with the prevalence of voice-recognition applications, text discussions can be carried on virtually in real-time, just like verbal conversations. It is right to grant them similar legal protections.
With the rapid rate of technological change, it can be difficult for courts and legislators to keep up with the times. On this issue at least, the Supreme Court has made an aggressive and encouraging effort to keep pace.