With our increasingly public lives and our insatiable appetite for more information and gossip, privacy has become the legal issue de jour. I mean, what exactly is privacy? Who should have it? And when? What information should be protected and to what extent? When do you waive your right privacy? How can information about you be collected, recorded, analyzed?
All the answers to these questions can change depending on how information is going to be used and by whom. As we seek out new information, we develop new ingenious ways to use it; all of these uses often come at the expense of maintaining some semblance of privacy.
As I write this, greater legal minds than mine are mulling over the answers to these questions. Not surprisingly, criminal law is one area of law that has been dealing with privacy issues for the past thirty years- long before technology made it a trendy legal issue for everyone and everything.
The criminal law has a fairly concrete idea of what information is private and how the state can get at it legally. Nonetheless, new technological capabilities require the courts to revisit the parameters of privacy as police find new ways to get at information and individuals find new ways to generate and store information.
Last week, the Supreme Court of Canada released a decision, Regina v. TELUS Communications Co., that gives added protection to the transmission of our text messages. From now on, in order for the police to intercept text messages, they must apply for a wiretap authorization- same as they would to intercept voice phone calls.
Different telecommunication companies employ different methods of providing services to their clients and some companies in order to ensure good service to their clients collect text messages sent using their network. Telus, in particular, at the time of transmission copies any text messages and saves these copies for 30 days. This is for the purpose of troubleshooting any potential problems.
Of course, where there is a repository of information, there will be someone trying to get at it. In this case, police applied for a general warrant in order to compel Telus to provide to them, daily, all future texts from a particular number.
A general warrant is much easier to get than a wiretap authorization. Police applied for the warrant knowing that Telus already independently collects copies of texts to ensure proper transmission. For the police this meant that there was another way to get at the information they needed.
Instead of getting a wiretap authorization to snatch the text messages mid-transmission, the police could simply scoop the unsuspecting text messages from a Telus computer database.
Telus fought the general warrant; likely well aware that their clientele would drop Telus like a hot potato, if it came out that at any time unbeknownst to them, Telus may be providing their private communications to the police.
The Crown argued that because the text messages in question were to be taken from a computer database as opposed to mid-transmission, the seizure of the text messages was not an “intercept” in the same way that listening in on a live phone call is an “intercept.” This reasoning was rejected by a majority of the SCC.
As a result, no matter how our telecommunication provider chooses to provide its service to us, we can all rest assured that our current private text conversations are afforded the same level of privacy as our telephone conversations.
Your historical text conversations that are retained or accessed by your telecommunication service provider have no such protection, however. Those can be obtained by a production order, which is a little bit like a search warrant for records. Ultimately, it seems the court has determined there will be a dichotomy between text conversations that have been had in the past and text conversations that are yet to be.