Friday, April 26, 2013

Police need to obtain wiretap authority to access future text messages.

The Supreme Court of Canada recently released a decision which held that the police could not rely on the general warrant provisions of the Criminal Code (Code) to compel Telus Communications Company (Telus) to provide them with copies of future text messages sent or received by two Telus subscribers. Rather,  if the police wanted to obtain access to these text messages, they would have to obtain a specific wiretap authorization under Part VI of the Code.

Unlike most mobile telephone providers, Telus routinely makes electronic copies of all text messages sent or received by its subscribers and stores them on a computer database for a brief period of time.   In the case decided by the court, the police obtained a general warrant which required Telus to produce on a daily basis any future messages which would be sent or received during a two week period.  Telus applied to quash the general warrant arguing that it constituted an interception of private communications and therefore required authorization under the wiretap authorization provisions in Part VI of the Code.

The Ontario Superior Court of Justice dismissed Telus' application and the appeal went directly to the Supreme Court of Canada.  The majority of the court allowed the appeal and ordered that the general warrant be quashed.

Justice Abella wrote that, "The only practical difference between text messaging and traditional voice communications is the transmission process. This distinction should not take text messages outside the protection to which private communications are entitled under Part VI of the Code. The general warrant provision of the Code should be broadly construed to ensure that it is not used to circumvent the more specific or rigorous pre-authorization requirements for warrants, such as those found in Part VI". Justice Abella then embarked on interpreting the meaning of the word "intercept" and held that the word must be broadly interpreted and must focus "on the acquisition of informational consent and the individual's expectation of privacy at the time the communication was made".

Finally, the learned judge held that text messages are private communications and even if they are stored on a service provider's computer, their production requires authorization under Part VI of the Code. If Telus did not maintain its computer database there is no doubt that the police would be required to obtain an authorization under Part VI of the Code to secure the prospective production of text messages. Most service providers do not routinely copy text messages to a computer database. Accordingly, if the police wanted to target an individual who used a different service provider, they would have no option but to obtain wire tap authorization under Part VI of the Code to compel the production. This creates a "manifest unfairness" to individuals who are unlikely to realize that their choice of telecommunication service provider can dramatically effect their privacy. Using Telus should not deprive it subscribers of the protection of the Code to which every other Canadian is entitled.



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