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OTTAWA--Text messages are electronic conversations that are entitled to the same level of privacy protection as other forms of private communications, even when they are stored on a service provider's computer, the Supreme Court of Canada ruled March 27 (TELUS Communications Co. v. The Queen, S.C.C., No. 34252, 3/27/13).
To obtain access to text messages in the conduct of a criminal investigation, police must obtain a wiretap warrant through the process provided under Canada's Criminal Code, the court said. The 5-2 ruling upheld an application by TELUS Communications Co. to block a general search warrant seeking access to text messages on its computer system.
The supreme court's ruling confirms that texts and other emerging forms of communication, including social media, must be given the same level of privacy protection as voice communications, Theo Ling, a partner at Baker & Mackenzie LLP's Toronto office, told BNA March 27.
The ruling confirms that texts and other emerging forms of communication must be given the same level of privacy protection as voice communications, and “is a small but important win for business.”
Theo Ling, Baker & Mackenzie LLP, Toronto
The court's ruling is consistent with privacy principles of limited use and disclosure--that techniques less intrusive to privacy rights should always be pursued first--and reflects Canadians' support for balancing the needs of law enforcement and individual rights, Ling said.
“It is a small but important win for business, as it checks the trend of expanding the scope of corporate responsibility and liabilities,” he said.
In March 2010, police in Owen Sound, Ontario, obtained a search warrant requiring TELUS to provide copies of text messages stored in its database that were sent or received by two wireless subscribers, as well as subscriber information for anyone who sent messages to or received them from the two subscribers.
TELUS applied to quash the warrant, “arguing that the prospective, daily acquisition of text messages from their computer database constitutes an interception of private communications and therefore requires authorization under the wiretap authorization provisions … ,” the supreme court explained.
The company's application was dismissed, leading to the appeal before the supreme court. The supreme court quashed the general warrant and related assistance order.
“Technical differences inherent in new technology should not determine the scope of protection afforded to private communications[,]” the supreme court said.
“The only practical difference between text messaging and traditional voice communications is the transmission process[,]” the court explained. “This distinction should not take text messages outside the protection to which private communications are entitled … .”
Search warrants issued under Section 487.01(1)(c) of the Criminal Code should not be used to circumvent the more specific and more rigorous pre-authorization requirements for other warrants, specifically wiretaps which are subject to rigorous safeguards, the court said.
An individual's expectation of privacy was particularly important in the case at hand because TELUS, unlike most service providers, routinely makes electronic copies of all text messages sent or received by its subscribers and stores them in a computer database for a brief time, the supreme court said.
To target someone using a different service provider, police would have had to obtain a wiretap authorization, the ruling said.
“This creates a manifest unfairness to individuals who are unlikely to realize that their choice of telecommunications service provider can dramatically affect their privacy[,]” the court said. “The technical differences inherent in Telus' transmission of text messages should not deprive Telus subscribers of the protection of the Code that every other Canadian is entitled to.”
The dissenting justices said there is no doubt a text message is a private communication, but they argued that in this case police did not “intercept” the messages but only sought disclosure of information that had been lawfully intercepted by TELUS for its own lawful purposes.
“The general warrant achieved the legitimate aims of the police investigation in a much more convenient and cost-effective manner than any other provision would have allowed,” Justice Thomas Cromwell said in the dissent, supported by Chief Justice Beverley McLachlin. “The effective and practical police investigation by a relatively small municipal police force was fully respectful of the privacy interests of the targets of the investigation and other Telus subscribers.”
By Peter Menyasz
The court's opinion is available at http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/12936/1/document.do.
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