SCC text message ruling clarifies privacy in digital communications

OTTAWA — The Supreme Court of Canada said Friday that a sender of a text message can expect that communication to be private, even when it’s on the recipient's device, highlighting a broadening perspective of privacy in digital communications — if only for certain cases. “It will certainly change the face of Canadian privacy law,” Florian Martin-Bariteau, a professor at the University of Ottawa, said in an email. “This is an important new protection for Canadians against state surveillance and intrusion into one’s private life.” It's a landmark ruling, a 5-2 decision by the country’s highest court, which said Friday that Nour Marakah had an objective expectation of privacy when he sent the incriminating texts to accomplice Andrew Winchester, whose phone was searched without a warrant. The contents were used to convict Marakah. This is the first time the Supreme Court has decided that Canadians have a reasonable expectation of privacy in text messaging, even after the message is sent, Martin-Bariteau said. Furthermore, it spells a reversal of the Ontario Court of Appeal decision that the alleged trafficker of firearms had no reasonable expectation of privacy over the texts that were already sent and on Winchester’s device. Evidence extracted from Marakah’s own phone — through an investigation done in Toronto — was ruled inadmissible by that court, whose decision Marakah appealed to the Supreme Court last year. The high court heard the arguments in March and Friday’s ruling adds some clarity to what law enforcement can’t do to obtain that kind of evidence. “It tells the police they can’t unlawfully search Person A and automatically use information obtained against Person B, whose information was found in the search of Person A,” David Fraser, a lawyer at McInnes Cooper, said in an email. In other words, a search warrant will be needed. In a concurring opinion, judge Malcolm Rowe said “the technological means by which we communicate continue to change...the modalities of texting inherently limited in his capacity to exercise control over the record of his text message conversation with ." “This alone should not be fatal to reasonable expectation of privacy,” he concluded. Moreover, the court’s scope of what constitutes a conversation in the digital age is not pigeonholed to text messaging or short message service (SMS), but an “electronic conversation.” That could include Apple Inc.’s iMessage, Alphabet Inc.’s Google Hangouts and Blackberry Ltd.’s Messenger, which are examples given by chief justice Beverley McLachlin. (McLachlin heard her final case this week before mandatory retirement.) Martin-Bariteau added it could also include private messages on Facebook Inc.’s Messenger and Twitter Inc.’s platforms. Citing Rowe’s opinion, Martin-Bariteau said digital communications “limits the control we have over messages we send and therefore creates a record that is beyond our control.” As such, only relying on the aspect of control, would “imply that there is no more privacy in the digital age.” The court invites a revisiting of the aspect of control over communications in the digital age, Martin-Bariteau said. “If the information is shared through private ways, you continue to control the e-conversation and can reasonably expect privacy from state intrusion.” Fraser added that the decision effectively does away with the concept of control being the only deciding factor in a privacy case, and courts will have to look at all circumstances in similar cases. But the ruling does not mean that all messages will necessarily involve an expectation of privacy, suggesting future cases may well be determined on a case-by-case basis. The Supreme Court gave examples of messages on social media or those in “crowded” internet chat room as having no privacy expectation under the unreasonable search and seizure clause, section 8, of the charter. This case specifically involved communications between two phones. “Different facts may well lead to a different result,” the decision read. In July last year, judge James MacPherson of Ontario’s highest court ruled that “the text messages in issue were sent by Mr. Marakah knowing that he had no control over what would happen to them once they reached Winchester’s phone. He obviously had some concern over what might happen to them, given his instruction to Winchester to delete them.” The Supreme Court tussled with the issue of control, as well as questions related to where the search took place and the private nature of the information. “To accept the risk that a co-conversationalist could disclose an electronic conversation is not to accept the risk of a different order that the state will intrude upon an electronic conversation about such disclosure,” the court said, deciding a person does not lose control of information when another possesses it or can access it. Michael Moldaver and Suzanne Côté were the dissenting judges. They argued that Marakah had no control over the texts, as they were not intercepted by police during transmission nor accessed on Marakah’s phone. They argued Winchester had “exclusive control” over the texts and was “free to disclose them to anyone he wished, at any time and for any purpose.” In particular, Moldaver said the decision could have “troubling consequences” and could disrupt the balance between privacy and law enforcement interests. It would expand the definition of section 8, raise uncertainties as to what would be admissible evidence and likely require some gathering of information, including information that is voluntarily handed over, to require a warrant. “The increased need for these judicial authorizations could strain police and judicial resources in an already overburdened criminal justice system,” Moldaver said in his dissenting opinion. “Investigations would be slowed, more judicial officers would be required, and the administration of criminal justice as a whole will suffer.” The ruling gives Marakah the go-ahead to challenge the lower court decision under section 8 of the Charter. In a related case, the SCC also ruled Friday a production order for text messages involving an accomplice of Tristin Jones, who was also convicted in a firearms case, did not require a wiretap authorization under Part 6 of the Criminal Code. That investigation involved Ottawa police. Police in the case requested that Telus Corp. hand over text messages it stored in an account associated with Kurt Gilles, which was used as evidence to convict Jones, the decision said. It noted that Telus was the only major Canadian telecom to store text message content. A lower court dismissed Jones’ appeal to challenge the order under section 8. Despite ruling that Jones had a reasonable expectation of privacy, the Supreme Court said the wiretap authorization — a warrant with a higher bar to meet than a production order — was unnecessary because the police were only accessing a historical record and not looking for a production of future text messages. The Jones case means production orders, which already require a warrant, are enough to compel service providers to cough up subscriber information. But for Fraser, it may also “raise questions about why Telus stores messages when other carriers do not.” — With reporting by Ahmad Hathout at ahathout@thewirereport.ca and editing by Anja Karadeglija at akarad@thewirereport.ca

SCC text message ruling clarifies privacy in digital communications

News | December 8, 2017

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SCC text message ruling clarifies privacy in digital communications

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