The Supreme Court of Canada has issued a landmark decision concluding that text messages may attract a reasonable expectation of privacy even after they have been sent and received. The case recognizes the importance of electronic communications and the privacy implications of electronic messaging, establishing a standard that is likely to have a significant impact on investigations across the country. Further, the court’s emphasis on a functional approach to privacy in the digital world could have implications that extend well beyond conventional text messaging. The court was divided on the issue: four judges comprised the majority (written by Chief Justice McLachlin), Justice Rowe concurred, and Justice Moldaver wrote a dissent (joined by Justice Cote). The court also released a second decision today involving text messaging which examined the intercept provisions that will be the subject of a future post.

The heart of the case was characterized by the majority in the very first paragraph:

Can Canadians ever reasonably expect the text messages they send to remain private, even after the messages have reached their destination? Or is the state free, regardless of the circumstances, to access text messages from a recipient’s device without a warrant? The question in this appeal is whether the guarantee against unreasonable search and seizure in s. 8  of the Canadian Charter of Rights and Freedoms  can ever apply to such messages.

The answer from the majority is yes: there can be a reasonable expectation of privacy in text messages even after they have been sent and received.

The case involved text messages involving illegal transactions in firearms. Police obtained a warrant to search the homes of the two individuals involved in the case, seizing their phones and accessing incriminating text messages. The lower court ruled that one of the warrants was invalid and that the messages obtained from the phone in that house could not be used as evidence. However, the messages were also recovered from the phone of the other individual and the judge in the case ruled that there was no expectation of privacy regarding the messages on that phone. In other words, the messages from the sender’s phone could not be used as evidence, but the same messages found on the recipient’s phone were fair game.

The majority of the Supreme Court disagreed, concluding that text message conversations can attract a reasonable expectation of privacy (though it will not always do so). The court importantly states that the subject matter of the search must be viewed functionally: the police were interested in the text message conversation, not the physical phone:

The subject matter of the search at issue was not Mr. Winchester’s iPhone, from which the text messages in this case were recovered. Neither the iPhone itself nor its contents generally is what the police were really after. The subject matter must, therefore, be defined more precisely.

Correctly characterized, the subject matter of the search was Mr. Marakah’s “electronic conversation” with Mr. Winchester. To describe text messages as part of an electronic conversation is to take a holistic view of the subject matter of the search. This properly avoids a mechanical approach that defines the subject matter in terms of physical acts, spaces, or modalities of transmission. It also reflects the technological reality of text messaging.

The subject matter of the search was therefore the conversation, not the components such as the physical phone or servers that might store the texts. In fact, the court suggests that the subject matter extends to “the existence of the conversation, the identities of the participants, the information shared, and any inferences about associations and activities that can be drawn from that information.”

The court then moves onto the question of reasonable expectation of privacy. There is no question that the defendant expected the recipient of the messages to keep them private. However, was that expectation reasonable?  The court considers three factors: the place of the search, the private nature of the subject matter, and control over the subject matter.

With respect to place of the search, the court notes that electronic communications do not fit neatly into the non-digital context. It considers the possibility that the electronic conversation do not occupy a physical place, recognizing that we often speak of “private chat rooms” between individuals. Further, there is a spectrum of places from content on my own phone (high) to someone else’s phone (lower) to public display (none). This discussion on the lack of a physical place for electronic communications could have implications well beyond text messaging.

The court adopts a broad approach with respect to the private nature of the subject matter, reasoning that individuals may have a privacy interest in the fact of their communication:

The personal nature of the information that can be derived from text messages is linked to the private nature of texting. People may be inclined to discuss personal matters in electronic conversations precisely because they understand that they are private. The receipt of the information is confined to the people to whom the text message is sent. Service providers are contracted to confidentiality. Apart from possible police interception — which cannot be considered for the purpose of determining a reasonable expectation of privacy— no one else knows about the message or its contents. Indeed, it is difficult to think of a type of conversation or communication that is capable of promising more privacy than text messaging. There is no more discreet form of correspondence. Participants need not be in the same physical place; in fact, they almost never are.

Given their privacy import, that court states:

Electronic conversations, in sum, are capable of revealing a great deal of personal information. Preservation of a “zone of privacy” in which personal information is safe from state intrusion is the very purpose of s. 8  of the Charter. As the foregoing examples illustrate, this zone of privacy extends beyond one’s own mobile device; it can include the electronic conversations in which one shares private information with others. It is reasonable to expect these private interactions — and not just the contents of a particular cell phone at a particular point in time — to remain private.

The most notable aspect of the analysis turns on control. The Crown argued that once we lose control over the message – it is received by another party who has the capability of disclosing it to third parties – we lose a reasonable expectation of privacy with the message. The majority disagreed:

a person does not lose control of information for the purposes of s. 8 simply because another person possesses it or can access it. Even where “technological reality” deprives an individual of exclusive control over his or her personal information, he or she may yet reasonably expect that information to remain safe from state scrutiny.

This aspect of the decision could be hugely important for other information communicated on electronic networks, where there may be some loss of control but the sender still had some expectation that the information would remain private.

Finally, the majority of the court also considered the public policy implications of the decision, including whether this ruling would disrupt the balance between law enforcement and privacy (as argued by the dissent). Its view:

There is nothing in the record to suggest that the justice system cannot adapt to the challenges of recognizing that some text message conversations may engage s. 8  of the Charter . Nor is it disputed that, where scrutiny of an electronic conversation is concerned, the state’s interest in effective law enforcement is outweighed by “the societal interests in protecting individual dignity, integrity and autonomy”. Whatever law enforcement’s interest in enjoying unfettered access to individuals’ text messages, privacy in electronic conversations is worthy of constitutional protection. That protection should not be lightly denied.

In light of this analysis, the majority concludes that there was a reasonable expectation of privacy in the text messages and it excludes the evidence from the case.

The dissenting opinion written by Justice Moldaver is particularly concerned with the policy implications of the decision, warning of serious, negative consequences:

From the standpoint of policy, granting Mr. Marakah standing in these circumstances would vastly expand the scope of persons who can bring a s. 8  challenge. The Chief Justice, speaking for a majority of the Court, adopts an approach to s. 8  that has no ascertainable bounds and threatens a sweeping expansion of s. 8  standing. This carries with it a host of foreseeable consequences that will add to the complexity and length of criminal trial proceedings and place even greater strains on a criminal justice system that is already overburdened. Worse yet, expanding the scope of persons who can bring a s. 8  challenge risks disrupting the delicate balance that s. 8  strives to achieve between privacy and law enforcement interests, particularly in respect of offences that target the most vulnerable members of our society, including children, the elderly, and people with mental disabilities.

Both the majority and dissent recognize the significance of this decision. In a world where electronic communications is increasingly important, the privacy rights attached to those conversations is of enormous importance. Justice Rowe’s concurrence notes that “digital communication inherently limits the control we have over the messages we send, as it inevitably creates a record that is beyond our control.” The Supreme Court of Canada today acknowledged that reality and adopted an approach that ensures that there may still be some privacy even where we lose some control over the communication.