The short answer is yes, although it is of course not as simple as that.
Many people are concerned that a recent right wing government, and concerns about terrorism, have transformed Canada into a surveillance state, one where the police are able to arbitrarily intrude on the privacy rights of its citizens.
In the past, the seizure of text messages was relatively non-intrusive, due to the limited capabilities of cellular phones. However, as a result of significant advancements in technology, smartphones are a reservoir of private information that have the capability to reveal vast amount of intimate and highly personal material.
Three different parties can save text messages during the communication process – the sender, the recipient and the telephone service provider.
Section 8 of the Charter of Rights and Freedoms (“Charter”) states that “everyone has the right to be secure against unreasonable search or seizure”. However, this right is limited in certain ways, because of the state’s interest in law enforcement. The following will discuss how section 8 applies to text messages and cellphones.
Do my privacy interests change if there is a lock on my phone?
Regardless of whether or not a phone is password-protected, important privacy interests are engaged. A person’s choice to leave their phone unlocked does not suggest an abandonment of privacy rights over the contents of the phone. Consequently, the police cannot arbitrarily scroll through one’s phone, even if it is unlocked. However, there are particular circumstances where the police can conduct a warrantless search of an arrestee’s cellphone; for example, if the police have reasonable grounds to believe that public safety and security is at risk.
Do I have a reasonable expectation of privacy in the text messages that I send or receive?
For example, if X sends Y a text message, and the police search Y’s phone, does X have standing to challenge the search under s.8 of the Charter?
When person X sends a text to person Y, and Y’s phone is subsequently searched by the police, X does not have automatic standing to challenge the search under section 8 of the Charter. In order to establish standing, two conditions must be met. First, the accused must show that they had a reasonable expectation of privacy. Second, if this expectation exists, it must be determined whether the search by the police was conducted in a reasonable manner.
It is difficult to show that a reasonable expectation of privacy exists over text messages. To begin with, once a person sends a text message, they essentially relinquish control over that message, as the recipient is free to preserve, forward or spread the message to any number of people.
Subjective expectation of privacy is known as the personal belief held by an individual that their privacy would not be invaded. Even though a text message is considered a private communication, this classification does not suggest that the sender of the text message has a subjective expectation of privacy over that message. Although the creator of a text message only intends the recipient of that message to view it, a reasonable person should foresee that there is a good possibility that their message can be read by unknown parties.
Some courts have held that a subjective expectation of privacy over text message would only arise in cases where the sender took steps to prevent people other than the recipient from accessing the messages, for example by giving clear instructions to the recipient to delete the message after reading it.
Isn’t there an implicit understanding not to share text messages, and hence a subjective expectation of privacy?
It can be argued that there is an implicit understanding that text messages will remain private and will not be shared with other individuals. Section 183 of the Criminal Code of Canada defines private communications as any oral communication or telecommunication whose sender or recipient lives in Canada, and that is made under the assumption that it will not be intercepted by any person other than the individual intended by the sender to receive it. Similarly, several courts have held that the risk that a text message will be disclosed to someone other than the intended recipient is different that the risk that the state will intercept the communication.
In other words, you might be willing to assume the risk that someone else might see a text on your phone. But that does not mean that you are willing to let the state eavesdrop on your communications.
How might section 8 apply to text messages preserved by a cellular telephone company?
In 2011, telecommunication companies received approximately 1.2 million data requests from law enforcement agencies in Canada. Most telecommunication companies, such as Rogers, do not save a copy of text messages. However, Telus is an exception, as Telus routinely creates electronic copies of all text messages that are sent or received by its customers onto their computer database.
Section 184(1) of the Criminal Code of Canada makes it an offence to willfully intercept private communications. Hence, if the police do not obtain the proper authorization to obtain text message saved by telecommunication companies, they will be in violation of section 8 of the Charter and the Criminal Code.
There are three different types of authorizations that exist – a production order, general warrant, and wiretap authorization. Production orders are the easiest to obtain, whereas the Court will only grant wiretap authorizations after strict conditions are met. For example, in order to acquire a wiretap authorization, the judge must be satisfied that a crime is likely to occur, and other investigative techniques have failed or are likely to fail.
As the law currently stands, a production order is sufficient to obtain text messages that are already saved by telephone companies. However, if the police wish to obtain future text messages sent by a person under investigation, they must obtain a wiretap authorization. This rule has come under great criticism, since the expectation of privacy is the same, whether a text has been already sent, or will be sent in future.
What is WhatsApp end-to-end encryption and how does it impact my privacy rights?
On March 31, 2016, WhatsApp released end-to-end encryption, which guarantees that only the sender and the recipient of the message are able to access it. As a result, no third parties, such as telephone service providers and WhatsApp, are able to view or preserve a copy of the message. This app is one example of the way that the private sector is responding to concerns about privacy intrusions by law enforcement and by the state. The recent court battle between the FBI and Apple over the contents of the San Bernardino shooter’s cellphone, is another.
How does Bill C-13 affect individual’s privacy rights?
The Protecting Canadians from Online Crime Act (“Bill C-13”), which came into force on March 10, 2015, contains several amendments to the Criminal Code that significantly enhance the investigative powers of law enforcement officials. For example, under section 487.0195(1) of the Criminal Code, a police officer can ask an individual to voluntarily save a text message, without obtaining prior authorization. Moreover, if a person voluntarily chooses to disclose information to the police after this request, the police are granted immunity for any future civil and criminal actions made against them as a result of this disclosure. It can be argued that this provision infringes section 8 of the Charter because it gives the police the ability to intrude with impunity on other people’s privacy without obtaining judicial authorization. Some individuals might be intimidated by the police and feel obliged to fulfill the officer’s “request” to save text messages, which in turn may be used as evidence in future proceedings.
Each party involved in the communication process of a text message has various rights and responsibilities relating to the maintenance of privacy over that message. The task has become even more difficult due to the powerful capabilities of new smartphones. Therefore, it is important to remain informed about how these developments in the technology and the law affect your privacy rights.