At a time when the use of portable communication devices is ubiquitous and the consumer is looking ahead to “reality glasses,” courts are still faced with arguments comparing smart phones to containers and a statutory scheme drawn up when phones needed to be dialled. The disconnect between the courts, the legal profession, and technology in the everyday world may also be a function of age. As recently as three years ago, the United States Supreme Court referred to pagers as a new technology and some of the judges had difficulty understanding the role of service providers in transmitting texts and similar forms of communication.
As a result, “courts are nervous” when confronted with these issues, suggests Hanni Fakhoury, a lawyer with the Electronic Frontier Foundation, a San Francisco-based privacy rights group. “The technology has advanced faster than the people making the law and those interpreting the law,” he says, noting the 2012 Supreme Court of the United States ruling in U.S. v. Jones concluded a warrant was required to affix a GPS tracking device to a drug suspect’s vehicle — based on 17th century trespass law.
The lack of technological savvy and a reluctance among appellate courts to interpret how to apply the existing schemes in the face of rapidly changing technologies has led to conflicting decisions at the trial level in both countries. In Telus, the Supreme Court of Canada appears to have gone beyond broad statements about technology and privacy rights and instead issued a ruling that provides more clarity for law enforcement and the public, in at least one area of communication. “The Supreme Court has recognized the importance of privacy interests in a new technology,” says Wendy Matheson, a partner at Torys LLP in Toronto who represented the Canadian Civil Liberties Association in Telus.
The issues in the case stemmed from a request in the spring of 2010 by police in Owen Sound, Ont., to obtain the prospective text messages of two individuals for a two-week period. Police obtained a general warrant, which Telus challenged but was dismissed by the applications judge. Telus was then granted leave by the Supreme Court to challenge that decision. The federal Crown, supported by the Ontario Ministry of the Attorney General as an intervener, argued there was no need to obtain an “intercept” warrant under the more rigorous Part VI provisions of the Criminal Code, in part because Telus routinely stores electronic copies of all text messages sent by its customers on a database for 30 days. In essence, the Crown suggested these messages were stored and not intercepted.
Justice Rosalie Abella, who wrote the main judgment with justices Morris Fish and Louis LeBell concurring, pointed out if messages are not stored there is “no doubt” police would require a Part VI authorization to obtain texts prospectively. To accept the Crown’s argument would create a “manifest unfairness” for the privacy rights of individuals who were customers of service providers that automatically made copies of text messages. In describing the nature of text messages, Abella accepted they fit within a definition of private communications, just as a phone call would. “Text messaging is in essence, an electronic conversation. The only practical difference between text messaging and the traditional voice communications is the transmission process. This distinction should not take text messages outside the protection of private communications to which they are entitled in Part VI,” wrote Abella.
In a separate opinion, justices Michael Moldaver and Andromache Karakatsanis concurred with the result, but declined to decide whether seizure of the text messages constituted an “intercept” under the Part VI provisions. “On the facts of this case, when one cuts through form and looks at the substance of the search that the police sought to conduct, what we are left with is the equivalent of a Part VI intercept,” wrote Moldaver. “Where uncertainty exists, the police would do well to err on the side of caution. They must know — with certainty — that general warrants may not be used as a means to circumvent other authorization provisions that are available but contain more onerous pre-conditions,” said Moldaver.
In dissent, Chief Justice Beverly McLachlin and Justice Thomas Cromwell concluded a general warrant was sufficient, because Telus legally made copies of the texts. “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,” wrote Cromwell. The two judges disagreed there was a greater privacy infringement as a result of the issuing of a general warrant and noted it was “more responsive” to the needs of police. “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,” stated Cromwell.
The impact on police when assessing how to define the search and seizure powers related to electronic communications is frequently invoked by the Crown in these cases. Jolaine Antonio, an intervener and counsel for the Attorney General of Alberta in the Langley grow-op appeal, warned the Supreme Court against imposing any special burden on the scope of a police search of a computer or mobile phone. “By straying into the arena and directing investigative tactics, courts effectively become supervising police investigators,” stated Antonio in written arguments filed in the appeal of the B.C. Court of Appeal’s decision in R. v. Vu. The Alberta Crown also suggested the retrieval of computer data by police should not be characterized as a search or a seizure. “The best approach is to consider it an ‘examination’ of a lawfully seized object,” wrote Antonio.
The issue before the court in Vu was whether the RCMP officers lawfully searched two computers and a mobile phone while executing a search warrant at a residence. The tele-warrant, obtained from a justice of the peace, permitted police to enter the dwelling to search for “documentation” that would show ownership of the residence. The federal Crown argued seeking special authorization to search a computer was unnecessary. “On established principles of search and seizure, it was not necessary for the warrant to specifically list computer, any more than it would have been necessary for the warrant to list cupboards, drawers or filing cabinets,” wrote Crown counsel Martha Devlin and Paul Riley.
Neil Cobb, the lawyer for Vu, urged the Supreme Court to reject a “one seizure fits all” approach because of “vast reservoirs of intensely private core information” contained on a computer. If police are allowed to “limitlessly scour” computers for evidence, then “a great deal comes into plain view” improperly, suggested Cobb.
The container or filing cabinet comparison dates back more than three decades and has been accepted by the B.C. courts on whether police can seize e-mails from a smartphone, if it is a lawful search incident to arrest. The capacity of a phone to “potentially store volumes of information does not, in my view, change the character of the search from being lawful as incident to arrest,” stated B.C. Supreme Court Justice Anne MacKenzie in 2007’s R. v. Giles.
James Sherren, a Vancouver defence lawyer who represented the co-accused whose smartphone was seized in that case, suggests volume of information does matter and once a device is seized and secured, police should be required to obtain a warrant to search. “There should be careful consideration given to conditions attached to the execution of a warrant to search electronic storage media so as to authorize only a selective as opposed to a wholesale retrieval of all of the data within the device,” says Sherren. Fakhoury adds the filing cabinet or container analogy fails to grasp the potential scope of any search of a computer or smartphone. “We are allowing someone to search the equivalent of not only your suitcase, but everything you have ever put in that suitcase,” explains Fakhoury.
While Telus has been characterized as a victory for privacy rights, “I wouldn’t describe it as setting up an obstacle for law enforcement,” says Matheson. “If police would have been permitted to wiretap your phone, then they will be able to seize your texts.” The decision in Telus and the appeal in Vu, which is under reserve, are likely just the beginning of a series of cases where the Supreme Court is going to be asked to interpret these issues. Leave has been sought of an Ontario Court of Appeal ruling this spring that declined to set out any new principles or decide if police require a warrant to search any mobile phone seized incident to arrest. “To put it in the modern vernacular: If it ain’t broke, don’t fix it,” wrote Justice Robert Armstrong on behalf of the panel in R. v. Fearon, concluding on the facts of that case the search of the device was lawful.
Even in Telus, the Supreme Court was clear its decision applied only to requests for prospective text messages and not those already sent. Whether the same principles apply to e-mails was not addressed directly.
Eventually, these issues may be determined, although the public at large may have already moved on to newer technologies to communicate.