Tuesday, March 21, 2017

In a commentary in the Ottawa Citizen, Prof. Simon Stern looks at the issues in an upcoming Supreme Court of Canada case that will decide to what extent police can search text messages on people's mobile phones ("How easy is it for police to search your texts? The Supreme Court is set to decide," March 21, 2017).

Read the full commentary on the Ottawa Citizen website, or below.


How easy is it for police to search your texts? The Supreme Court is set to decide

By Simon Stern

March 21, 2017

On Thursday, the Supreme Court will hear a case posing the question of how far your privacy rights travel along with the text messages you send from your phone.

Do the police need a legal basis to search your phone, so long as the only texts they read are the ones that you’ve received from others? Or can the police search for those messages without any reason at all, on the assumption that after someone hits the “send” button, any expectation of privacy in the message disappears?

Last year, in R v. Marakah, the case now pending before the Supreme Court, the Ontario Court of Appeal ruled that your privacy rights in a text message vanish after you send it. By a two-to-one margin, the court held that the sender has a constitutionally protected interest in writing and sending a text message, but not in the message itself – so long as the police obtain it by searching the recipient’s phone.

If that decision is affirmed, it would allow the police to search anyone’s phone without having to give a reason, if they only look at the messages that came from other senders. In 2015, the British Columbia Court of Appeal divided the other way on this question, ruling by a two-to-one margin that everyone has a privacy right that continues even after the message has been sent.

Why have the courts found this issue so difficult?

They have been using the wrong analogies. Text messages and letters should receive the same kind of privacy protection. Some are meant to be shared, others aren’t, and the distinctions between these categories remain the same whether you are texting or using Canada Post.

For the ones that aren’t meant to be shared, most people would be shocked to hear that the police can read them without any legal basis.

Judges have allowed themselves to be distracted by superficial differences. Because text messages are faster and more casual, they don’t seem like letters. Those differences show why texting is so pervasive, making it easy to lose track of their significance.

The Supreme Court usually explains privacy rights in terms of values like autonomy, dignity and integrity. As the court has often emphasized when discussing privacy rights, these values are important because they are essential for protecting the rights of citizens to express themselves and to choose their own path, in a free and democratic society. If we look to those basic values, it’s hard to see why text messages aren’t just as important, in exactly the same ways, as letters.

That doesn’t mean that the police are never allowed to read the messages on your phone, it just means they need a valid legal basis for it. What kind of basis? In a recent decision, R v. Chehil, the Supreme Court held that if the police can give an objective reason for believing that criminal activity (like selling illegal drugs) is occurring in a specific place, they should be allowed to search there, in narrow, targeted fashion.

In Chehil, this objective basis – under the standard of “reasonable suspicion” – justified the use of a sniffer dog whose only function was to detect, from the outside of a locker or backpack, the presence or absence of drugs.
The same rationale applies to text messages.

No one has yet come up with a device that can be placed on a box of letters, and can pick out only the ones sent by a certain person. But it is possible to search electronic information that way, in the narrow, focused manner that Chehil permits.

In this case, it would mean the police may look only for messages from someone already identified as a suspect, without inspecting any others. Allowing for this kind of search would mean that everyone is protected from random and groundless searches of their phones, while permitting a limited search just when the police can justify their suspicions.