Supreme Court weighs privacy of text messages

OTTAWA — There should be a reasonable expectation of privacy from search and seizure not just for the recipient of a text message but for the sender as well, a lawyer argued in front of Canada’s highest court Thursday, after a lower court used unlawfully obtained texts from a recipient's phone to convict the sender in a firearms trafficking case. Accused trafficker Nour Marakah appealed a decision last year by the Ontario Court of Appeal, which upheld a conviction from a lower court based on evidence that was retrieved from recipient Andrew Winchester’s phone. The lower court had decided that once the text reaches the recipient, there is no longer a reasonable expectation of privacy for the sender because there is a loss of control. “It creates an artificiality that’s not supported by the jurisprudence .... that only the recipient in a bilateral conversation has a reasonable expectation of privacy in the text messages,” Mark Sandler, a lawyer for Marakah, told the seven-member Supreme Court. “The text message is sent by a sender to a recipient. It’s usually a conversation, so the recipient is then returning a message to the sender. Each has lost control or exclusive access to the messages as they exchange them,” Sandler said. Opposing crown counsel Randy Schwartz made the argument that only the recipient of the text message has a reasonable expectation of privacy in normal circumstances. “A party to a text message has a reasonable expectation of privacy with texts on their own device,” Schwartz said. “But it does not follow that I have a reasonable expectation of privacy of a copy of my sent text on someone else’s device.” According to court documents, conversations from both Marakah's and Winchester's phones were retrieved without consent. During trial, the conversations from Winchester's phone were relied upon by the prosecution — with evidence from Marakah's phone excluded — with the trial judge noting that Marakah only had a subjective, not an objective, expectation of privacy in those messages. But Sandler said the case is pegged on the involuntary and unlawful seizure of the text messages and said consent on behalf of the recipient could have served as an argument for obtaining the messages lawfully. “Although I reserve, as the originator of the message, a reasonable expectation of privacy in that communication, that does not mean that the individual on the other end is not entitled to voluntarily … turn over the messages including the phone conversation … to the police,” he said. Though that doesn’t mean that there isn’t a reasonable expectation of privacy, “consent may be the answer to the lawful authority of the police to seize those messages in the instance of the recipient,” he added. Both sides also argued that a nuanced approach should be taken with respect to how text privacy is dealt with in various situations. “If you’re asking if there's going to be a fine line for every case where we’re going to know whether a text message attracts a reasonable expectation of privacy when it doesn’t, the answer is no, that’s why I suggested that you give added certainty for law enforcement in a way that they go about their job,” Sandler argued. Sandler said the Criminal Code sets a litmus test for reasonability. He gave the example of someone who sends a text to “a number of strangers,” in which case that person can’t have the reasonable expectation of privacy. In his opening arguments, Schwartz said there are some exceptional circumstances where privacy can be expected on the part of the sender, including where bank information is sent to a bank manager. “There’s no doubt the law has recognized repeatedly that there may be a reasonable expectation of privacy in information where we surrender in the hands of others,” he added. “There’s no question about that, there are many circumstances where that’s true.” The court also pressed both sides to differentiate text messages from other forms of communication, including letters and email. The arguments raised by the lawyers for the appellant rested on the “instantaneous” nature of text messaging, which is similar to a phone conversation. Jill Presser, the intervening counsel on behalf of the Canadian Internet Policy and Public Interest Clinic, said in her statement that the court should be careful with how it approaches the concept of control. “An all-or-nothing approach to control would necessarily mean that text-based digital communications are never private,” she said, with individuals not being protected under the unreasonable search and seizure under Section 8 of the Charter. — With reporting by Ahmad Hathout at ahathout@thewirereport.ca and editing by Anja Karadeglija at akarad@thewirereport.ca

Supreme Court weighs privacy of text messages

News | March 24, 2017

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Supreme Court weighs privacy of text messages

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