Police must treat text messages as private, top court rules
Article Courtesy of: “The Globe and Mail” In the US courts are confronting the same issues and the trend favors admissibility.
Text messages deserve the same degree of privacy as other electronic communications, the Supreme Court of Canada ruled this morning.
The court invalidated an expansive search by a rural Ontario police force of previously-sent text messages preserved by an internet service provider, Telus Corp.
A 5-2 court majority said that, despite technological differences, “text messaging bears several hallmarks of traditional voice communication: it is intended to be conversational, transmission is generally instantaneous, and there is an expectation of privacy in the communication.”
The decision, a significant new milestone in the development of privacy rights over electronic communications, invalidated a search warrant police investigators obtained allowing them to search through a vast trove of text messages routinely preserved by Telus.
A lawyer for Telus, Scott Hutchison, successfully persuade the Supreme Court majority that text messages are not minimally important communications that deserve only a low threshold of privacy. Mr. Hutchison argued that, unless police are instructed to go through the rigorous requirements that apply to other applications to monitor electronic communications, they will be free to go on investigatory fishing expeditions. “Text messaging is, in essence, an electronic conversation,” Madam Justice Rosalie Abella agreed, writing for a three-judge faction of the majority. “Technical differences inherent in new technology should not determine the scope of protection afforded to private communications.”
Justice Abella said that the only practical difference between text messaging and traditional voice communications is the transmission process itself. Police in Owen Sound, Ont had obtained an order forcing Telus to produce any text messages sent over a two-week period in 2010.
Telus applied to quash the “general warrant”, arguing that being forced to yield its daily accumulation of text messages from its computer database constituted an interception of private communications that would require a full wiretap authorization by a judge. The Supreme Court overturned lower court decisions against Telus in coming to its decision today. “Telus is very happy that the Supreme Court of Canada agreed with its position and extended this protection to text messaging,” Mr. Hutchison said in an interview this morning. “The decision confirms that text and other emerging new forms to communication will enjoy the same level of protection as traditional voice calls,” he said. “This is an important signal that the courts are ready to address privacy issues in information technology cases in a substantive and not a hyper-technical way.” “The law makes it clear that a wiretap is only available to investigate the most serious crimes and only where the police can show that it is not practical to investigate those crimes any other way,” Mr. Hutchison added.
Unlike most other Internet service providers, Telus maintains a computer data base that preserves copies of text messages its customers send. Judge Abella said that this distinctive practice was what allowed police to obtain a “general warrant” to search its text messages. Otherwise, they would have had to go through a much more rigorous process of obtaining a general wiretap authorization – as they would have to have done if there were seeking text messages from one of Telus’s rival companies. “This creates a manifest unfairness to individuals who are unlikely to realize that their choice of telecommunications service provider can dramatically affect their privacy,” Judge Abella said.
“The technical differences inherent in Telus’s transmission of text messages should not deprive Telus subscribers of the protection of the Code that every other Canadian is entitled to.” The dissenting judges – Chief Justice Beverley McLachlin and Mr. Justice Thomas Cromwell, did not dispute the importance of text messages being considered as important private communications. However, they argued strenuously that the manner and form in which Telus had preserved its customer’s text messages – storing them in its databases – distinguished them from being intercepted electronic messages.
They said that police were not trying to circumvent the law when they applied for a general search warrant because they were not asking to intercept messages.
“Under the general warrant, the police sought disclosure from Telus of information that it had already lawfully intercepted,” the dissenting judges said. “The general warrant did not require Telus to intercept communications, but to provide copies of communications that it had previously intercepted for its own lawful purposes.”
They said that the majority’s interpretation of the law will make future investigations more difficult for police and will “extend the scope of investigative techniques which require wiretap authorizations far beyond anything ever previously contemplated.”