• Expectation of Privacy in Text Message Conversations More Stringent In Canada than the U.S.
  • March 1, 2018 | Authors: Robyn A. Grant; Vinay Desai
  • Law Firms: Borden Ladner Gervais LLP - Toronto Office; Borden Ladner Gervais LLP - Montreal Office
  • Canada’s highest court, the Supreme Court of Canada (the "SCC"), recently decided in R. v. Marakah, 2017 SCC 59, ("Marakah") that Canadians have a reasonable expectation of privacy in the text messages they send, even after they have been received by the recipient. With this seminal ruling, the SCC established a divergence from the United States where it has been established that text messages are not private once they have been duly delivered.

    Background

    The case involved an accused who had sent text messages to his accomplice regarding illegal firearm transactions. These texts were recovered from the accomplice’s phone and subsequently used by the police to convict the accused of multiple firearms offences. Although the trial judge considered the search of the accomplice’s phone to be unreasonable, the recovered text messages were permitted as evidence against the accused.

    The SCC Decision

    The SCC reversed the lower court’s decision and concluded that the accused had a reasonable expectation of privacy in the text messages that he sent to his accomplice and therefore had the necessary standing under section 8 of the Canadian Charter of Rights and Freedoms (the "Charter") to challenge the police’s search of the accomplice’s phone and use of the text messages as evidence. The prosecution agreed that the search was unreasonable and the SCC concluded that the evidence collected should be excluded, ultimately resulting in the charges against the accused being dropped.

    Reasonable Expectation of Privacy in Text Messages

    In reaching the determination that text messages can attract a reasonable expectation of privacy, the SCC considered whether there was an expectation of privacy in the text messages and if so, whether this subjective expectation was objectively reasonable.

    It was clear that the accused expected that the recipient keep the text messages he received private, but was that expectation objectively reasonable? In evaluating the reasonableness, the SCC looked at three factors further discussed below: (i) the place of the search, (ii) the private nature of the subject matter, and (iii) control over the subject matter.

    i. Place of the Search
    What is the place of an electronic text message conversation? The SCC determined that, unlike traditional methods of communication involving physical documents, electronic conversations such as text messages do not occupy a physical place; rather, they create "private chat rooms" between individuals. These rooms, although electronic, are the place of the search and this suggests there would be a reasonable expectation of privacy in text messages.

    ii. Private Nature of Text Messages

    The SCC concluded that given the intrinsic private nature of texting wherein individuals specifically choose the recipient of their texts and are more inclined to discuss personal matters, it is reasonable to expect these private interactions to remain private.

    iii. Control over Text Messages

    Finally, and most importantly, the SCC analyzed the notion of control over text messages once they are sent. Both the prosecution and the dissenting judges believed that once control over a message is lost – when it is received by another party capable of disclosing it — the reasonable expectation of privacy of the message is also lost. The majority of the SCC disagreed and stated that the risk that the contents of a text message can be disclosed does not negate a reasonable expectation of privacy in such an electronic conversation. In essence, a person does not lose control over the information simply because another person possesses it or can access it. The SCC made a comparison to its previous decision in R. v. Cole1, where it ruled that an employee maintained a reasonable expectation of privacy in the subject matter contained on his work-issued laptop, over which he did not have exclusive control.

    The dissenting judges believed that control is a crucial contextual factor and, accordingly, the accused’s lack of control over the accomplice’s phone was fatal to his reasonable expectation of privacy in the text messages. In response, the majority determined that by choosing to send a text message by way of a private medium to a designated person, the sender has sufficient control over the electronic conversation and moreover, control is merely one factor to consider.

    Difference with the United States

    In the United States, the Fourth Amendment to the United States Constitution protects people’s expectation of privacy. Similar to Canadian law, the two elements of the American test for finding a reasonable expectation of privacy are: (1) a subjective expectation of privacy and (2) that society is prepared to recognize that expectation as objectively reasonable. However, unlike in Canada, the U.S. courts do not consider there to be a reasonable expectation of privacy in text messages once they have been delivered.

    In the case United States v. Jones, 149 Fed. Appx. 954 (Ct. of Appeals 11th Cir. 2005), several defendants were indicted on criminal charges including conspiracy to possess with the intent to distribute various illegal substances. The defendants had used text messages to communicate with each other and the government intended to use these messages, which they obtained through subpoenas, to prosecute them. The defendants moved to suppress the evidence by claiming a reasonable expectation of privacy in the text messages and the district judge ruled in their favour. However, the government used one of the defendants as a witness and obtained the text message conversations through this witness. The court held that these messages were allowed as evidence as this individual was involved in the communications. The Court of Appeals confirmed the District Court’s decision and determined that the transmitter of a message enjoys reasonable expectation of privacy that government authorities will not intercept their communication without probable cause and a search warrant, but once a transmission is sent and received by another person, the of that message is no longer protected.

    The U.S. courts have also determined that there is an absence of a reasonable expectation of privacy for e-mails2 and employer-issued devices3 when an employer searches phone records for any legitimate business reason.

    The contrast between Canada and the U.S. on the issue of expectation of privacy in electronic communications such as text messages and e-mails rests on the issue of control. U.S. courts have taken the stance that individuals lose control over the communication once it has been delivered, while the SCC, in Marakah, determined that this isn’t the case for Canadians.

    It is important to highlight that the SCC did not determine that all text message conversations are protected from police searches. Rather, it concluded that an individual who sends text messages has a reasonable expectation of privacy in the contents of that electronic conversation and therefore the individual has the necessary standing to challenge the validity of a police seizure of those text messages, which are ultimately obtained from another person’s phone. Moreover, where the police obtains a valid warrant to either intercept a text message in transit or search an individual’s phone, the use of the text messages as evidence will be acceptable. The SCC also noted that the case and its findings did not concern messages posted to social media feeds, conversations occurring in crowded online chatrooms or comments posted on message boards.

    The SCC’s ruling is likely to have broad implications for privacy interests and can potentially be applied to other forms of digital communication such as e-mails, instant messages and direct messages on social media as they all essentially have the same form and function as text messages. Messages that are encrypted or are password protected will favour a greater expectation of privacy and Canadians now have the right to expect their text messages will be private.

    In general, privacy laws are more stringent in Canada than in the United States and this SCC case supports the heightened expectation of privacy that mobile users can expect. Companies with operations in Canada can be more easily assured that their employees and business partners maintain a reasonable expectation of privacy in work e-mails and text messages sent from employer-issued devices