Ceci est-il une conversation?

The Supreme Court holds we can expect our text messages to remain private, even on other people`s phones

Last week, the Supreme Court released its eagerly-awaited judgment in R v Marakah, 2017 SCC 59, holding that a person had standing to challenge the admissibility of text messages to which he was a party but which the police had seized from another’s cell phone. The Chief Justice wrote the majority opinion, in which Justices Abella, Karakatsanis, and Gascon concurred. Justice Rowe wrote a brief concurrence, raising some concerns about the future implications of the majority opinion, with which he nevertheless agreed. Justice Moldaver, with the agreement of Justice Côté, wrote a fierce, strongly-worded dissent.

Section 8 of the Canadian Charter of Rights and Freedoms provides that “[e]veryone has the right to be secure against unreasonable search or seizure”.  This right applies when a person has an objectively reasonable “expectation of privacy” in the thing or information that is the object of the search or seizure. There is no question that Mr Marakah wanted and expected his exchange of text messages with an accomplice in a weapons-trafficking venture to remain private. But was he entitled to expect that the police would not read these messages on that accomplice’s phone?

The majority and Justice Rowe think that he was. As the Chief Justice put it, the

interconnected web of devices and servers creates an electronic world of digital communication that, in the 21st century, is every bit as real as physical space. The millions of us who text friends, family, and acquaintances may each be viewed as having appropriated a corner of this electronic space for our own purposes. There, we seclude ourselves and convey our private messages, just as we might use a room in a home or an office to talk behind closed doors. [28]

The information exchanged in these nooks and crannies of cyberspace is, potentially, highly private, and indeed “[i]ndividuals may even have an acute privacy interest in the fact of their electronic communications”. [33] Crucially,

this zone of privacy extends beyond one’s own mobile device; it can include the electronic conversations in which one shares private information with others. It is reasonable to expect these private interactions — and not just the contents of a particular cell phone at a particular point in time — to remain private. [37]

The fact that we might not control all the devices through which this information is accessible is not especially important. It is the information exchanged, the conversation, that is the subject of the expectation of privacy, not whatever device might allow one it view it. And even the fact the person with whom one is texting could disclose the fact or the content of the conversation does not allow the state to read it.

Justice Moldaver disagrees. For him, control is a key factor in the analysis. Justice Moldaver writes that “the reasonableness of a person’s expectation of privacy depends on the nature and strength of that person’s connection to the subject matter of the search”, and “[w]here an individual lacks any measure of control, this serves as a compelling indicator that an expectation of personal privacy is unreasonable”. [98] Justice Moldaver gives a number of examples: DNA in one’s body is private, but DNA traces left on, say, the body of a victim of a crime are not; thoughts recorded in a private diary are private, but not those publicly shared online. [116] While control does not require ownership or exclusivity of access, a lack of control means that information is not in a meaningful sense private.

When it comes to conversations, including conversations conducted by text messaging, Justice Moldaver is of the view that one loses control over what one has said once one has said it. What one’s interlocutor’s phone records is “an independent record”, [128] similar to the notes one might make after a spoken conversation, and within the interlocutor’s exclusive control. Evesdropping on an ongoing conversation, or intercepting text messages as they are being sent, violates a reasonable expectation of privacy. By contrast, just as each party to a conservation is free to share a record or recollection of it, and his or her interlocutor can (subject to any applicable privacy legislation) have no reasonable expectation of privacy in that record, so it is also with a “record” of a conversation conducted via text messaging.

Here, as I see it, is one important point of disagreement between the majority and the dissent. Both are ostensibly agreed that what Mr. Marakah had, or lacked, a reasonable expectation of privacy — or, in other words, “the subject matter of the search was Mr. Marakah’s ‘electronic conversation’ with” his accomplice. [17; 111] But it seems to me that while the majority does indeed approach the case as one about the privacy of a conversation, the dissent sees it as being not about a conversation as such, but rather about a record of a conversation. To repeat, Justice Moldaver accepts that “an electronic conversation” would be private; it could not be intercepted without due authorization. But the messages stored in the cell phone of one of the parties to the conversation are not the same thing. They are like the notes one of the interlocutors took. (Hence the title of this, in reference to René Magritte’s notorious The Treachery of Images, a.k.a. Ceci n’est pas une pipe.) As Justice Moldaver suggests, we can expect not to be eavesdropped on, when having a private conversation, but not necessarily that the contents of that conversation will never be revealed to third parties. So the majority decision makes sense in light of how it understood the issue, and the dissent makes sense in light of its author’s different understanding of the case.

But which of them is correct? I personally find this a very difficult question. A number of legal issues arising out of new technologies, broadly speaking, has to do with the erasure of the once-clear line between the spoken and the written word. The former was (usually) spontaneous and fleeting; the latter (relatively) deliberate and permanent. But electronic communications combine spontaneity and permanence in a way to which many of us are still only getting used and with which the legal system, unsurprisingly, struggles. One of my very early posts, for instance, was about a case that concerned an attempt by a university to punish students who ranted about their professor on Facebook. Student rants about a professor are nothing new, but the fact that they were made online rather than over beers left a record for the authorities to look into and to try (unsuccessfully in the event) suppressing. In a different way, the disagreement about the way to characterize text messaging “conversations” — often created in a spontaneous way, as if the parties were together in the same room, but a permanent record for the police to look at later — exemplifies the same set of difficulties. (This might come out most clearly in Justice Rowe’s brief concurrence.) On balance, though, I am inclined to think that Justice Moldaver’s view makes more sense. The idea of a never-finished conversation, to which one is always an ongoing party, and in which one is permanently entitled to expected privacy, which seems implicit in the majority’s approach, doesn’t quite make sense to me. This is a very tentative thought, however, and a minority view, I gather.

Beyond the characterization of “electronic conversations”, the Chief Justice and Justice Moldaver also disagree about the policy implications of the Supreme Court’s decision. In particular, Justice Moldaver worries that police will not be able to access, without a warrant, “electronic conversations” that are voluntarily tendered to them by one of the parties, even when the conversations are themselves crimes, and the parties disclosing them to the police are victims. A person may, for example, receive a threatening text message, and want to show it to police officers, but it is not clear that the police will be entitled to look without judicial authorization. At best, this will complicate the work of the police; at worst, serious crimes will go unpunished. The Chief Justice responds that these difficulties can be dealt with if and when they arise. For his part, Justice Rowe is not so sure, and I take that it is because he ” share[s] the concerns raised by Justice Moldaver as to the consequences of this decision” [89] that he goes to the trouble of writing separately.

A lot, then, remains to be decided. Privacy issues have been consistently difficult for the Supreme Court, or at any rate more consistently divisive than most others. I find these issues difficult too, so I have sympathy for judges on both sides. That the majority wants to be protective of privacy in a way the majority in R v Fearon, 2014 SCC 77, [2014] SCR 621 (which I criticized here) was not is heartening. (Some people on Twitter were wondering how many of the judges had got smartphones in the meantime. A cynical question, perhaps, but I’m not well placed to critcize those who are cynical about judges, am I?) The question now is whether the pendulum has swung too far in the direction of privacy. It might have, but we will have to wait to find out.

Call Dropped

Yesterday, the Supreme Court delivered its decision on the constitutionality of warrantless searches of cell phones incident to arrest, R. v. Fearon, 2014 SCC 77. By a 4-3 majority, the Court held that such searches are constitutional provided that some limits are respected. The dissent would only have allowed such searches in very limited “exigent circumstances.” Because Justice Cromwell’s majority opinion is somewhat vague in substance and ambiguous in tone, as well as for technological reasons, the consequences of this decision are uncertain, and may well prove quite limited. We should hope that they will, because Justice Karakatsanis’s dissent has the better of the argument.

Mr. Fearon was arrested on suspicion of involvement in an armed robbery. Police officers searched at the time of the arrest, as the law has long recognized their right to do, and found his cell phone, of the “dumb phone” variety, and searched it. They found a picture of a gun, later determined to be the gun with which the robbery had been committed, as well as a draft text message proclaiming that “we did it” ― it being quite clearly the robbery. The police searched the phone again later on, and yet again some six months later, after obtaining a warrant to search it and download its contents, but found nothing more of interest. At trial, Mr. Fearon applied to have the evidence of the phone search excluded, but the judge refused, as did the Ontario Court of Appeal.

***

Having reviewed the Supreme Court’s previous decisions dealing with searches incident to arrest, Justice Cromwell turns to the search in this case, emphasizing that it was done for one of the purposes recognized as legitimate in these cases ― the gathering of evidence. The police, he stresses, believed that searching the phone could lead them to other suspects or help them find the gun used in the robbery or the property stolen. Justice Cromwell notes that as a general matter, the power of search incident to arrest “is extraordinary because it requires neither a warrant nor reasonable and probable grounds,” [45] and insisted that

[t]hat the exercise of this extraordinary power has been considered in general to meet constitutional muster reflects the important law enforcement objectives which are served by searches of people who have been lawfully arrested. [45]

Searches of cell phones, in particular, can be very useful to law enforcement. At the same time, says Justice Cromwell, “the search of cell phones, like the search of computers, implicates important privacy interests which are different in both nature and extent from the search of other “‘places’.” [51] The amount of information such devices can contain and the things they can reveal about their users are without comparison to other objects or “containers” such as briefcases. Justice Cromwell also indicates that neither the type of device (whether a “smart” phone or not) nor its being or not protected by a password matters to determining the amount of constitutional protection it receives.

That said, Justice Cromwell asserts that “while cell phone searches … may constitute very significant intrusions of privacy, not every search is inevitably a significant intrusion.” [54] And any search incident to arrest

must be linked to a valid law enforcement objective relating to the offence for which the suspect has been arrested. This requirement prevents routine browsing through a cell phone in an unfocussed way. [57]

He therefore rejects a rule that would categorically prohibit warrantless searches of cell phones incident to arrest, such as that which the U.S. Supreme Court set out in Riley v. California, 134 S.Ct. 2473 (2014). He also rejects the further alternatives of requiring the police to have “reasonable and probable grounds” before searching cell phone, or limiting the searches to “exigent circumstances” where they are necessary to prevent harm to persons or avoid the destruction of evidence. The ability to search phones is too important to police, and should not be taken away if it is possible to set out some safeguards that will limit the intrusions on the privacy of the suspects.

Justice Cromwell thinks that it is indeed possible to do so. First, “[b]oth the nature and the extent of the search performed on the cell phone must be truly incidental to the particular arrest for the particular offence,” which usually will mean that “only recently sent or drafted emails, texts, photos and the call log may be examined,” though “these are not rules, and other searches may in some circumstances be justified.” [76] Furthermore, the investigation of some crimes, notably those involving “violence,” “readily disposable property,” and “drug trafficking” will more readily support searches of phones than that of “minor offences” [79] Second, cell phone searches incident to arrest are only permitted to find evidence absent the prompt discovery of which “the investigation will be stymied or significantly hampered” ― meaning

that the police will have to be prepared to explain why it was not practical … in all the circumstances of the investigation, to postpone the search until they could obtain a warrant. [80]

And third, police must take detailed notes when they search a cell phone.

These constraints were not respected during the search of Mr. Fearon’s phone, albeit for the excellent reason that the Supreme Court had not yet articulated them. Accordingly, Justice Cromwell finds that Mr. Fearon’s right not to be subject to an unreasonable search was infringed, but decides that the evidence could nonetheless be admitted under s. 24(2) of the Charter, as the infringement was not so serious as to “bring the administration of justice into disrepute.”

***

Justice Karaktsanis, for her part, argues that Justice Cromwell’s attempt to limit the intrusions on the suspects’ privacy caused by searching their cell phones will not work. Indeed, in her view, the safeguards proposed by Justice Cromwell will fail to protect privacy while still hampering the work of police and generating litigation.

She begins by observing that

[o]ur digital footprint is often enough to reconstruct the events of our lives, our relationships with others, our likes and dislikes, our fears, hopes, opinions, beliefs and ideas. Our digital devices are windows to our inner private lives. [101]

For this reason, the search of a cell phone is just as serious an “encroach[ment] on the arrested person’s most private spheres [as that] of a home, or the taking of bodily samples.” [104] For Justice Karakatsanis,

the cell phone is like a key or portal which can allow the user to access the full treasure trove of records and files that the owner has generated or used on any number of devices. … The fact that a suspect may be carrying their house key at the time they are arrested does not justify the police using that key to enter the suspect’s home. In the same way, seizing the key to the user’s digital life should not justify a wholesale intrusion into that realm. [132]

She also points out that “[t]he threat of unreasonable intrusions on privacy (and not only the unreasonable intrusion itself) is enough to undermine the values served by privacy.” [117]

On the other side of the ledger, Justice Karakatsanis acknowledges that “searching a cell phone will often be very useful for law enforcement,” [137] but argues that absent exceptional circumstances, waiting for a warrant to do so will not be too much of a burden. While the wait might occasionally hamper an investigation, as with the prohibition on searching a home incident to arrest, this is the price to pay for protecting privacy.

The restrictions on searches proposed by Justice Cromwell, just like a rule allowing only “cursory” cell phone searches incident to arrest, are in Justice Karakatsanis’s view impracticable, uncertain, and bound to generate after-the-fact litigation. A search that is intended to be limited or cursory can still lead to highly private information. Even

a cursory inspection for recent communications will need to search a host of applications ― the privacy infringement may be far from minimal and the inspection far from quick. Similarly, a cursory inspection of photos may involve any number of private and personal photographs of the individual ― and of third parties. [164]

Letting the police carry out such inspections would be an invitation for suspects to subsequently litigate the admissibility of their fruits ― yet even if the evidence is then excluded, the harm to privacy will already have occurred.

***

It’s not clear just what the effects of the majority’s decision will be. In theory, it is even possible that police will take to heart Justice Cromwell’s warnings about the limited scope of permissible cell phone searches, though I wouldn’t count too much on that. More importantly, technology will help accomplish that which constitutional law will not. If a phone is protected by a password and locked at the time it is seized, the police will not be able to search it incident to arrest, and will need to obtain a warrant anyway. And with manufacturers deciding to relinquish their own ability to break the password protection of their phones, as Apple has already done, phones may become unsearchable, even with a warrant, in the future ― which is not necessarily a good thing.

Yet to the extent that the decision does matter, it is, I think, a regrettable one. Justice Cromwell dutifully recites the his own conclusions, for the Court, in R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657 about the potentially far-reaching effects of searching computers, and acknowledges that cell phones are equivalent to computers from a privacy perspective. But when reading his assertion that “[l]ooking at a few recent text messages or a couple of recent pictures is hardly a massive invasion of privacy, let alone an affront to human dignity,” [61] one cannot help but wonder just how seriously he takes his own words. Justice Cromwell discusses the dignitarian problems inherent in strip searches, but would allow police to look at images just as if not more intimate. He is aware of the intrusiveness of a taking of bodily samples, but would let police read emails discussing a person’s health issues. Justice Karakatsanis, whose opinion reads like that of a very technologically savvy person, has a much better appreciation of what is at stake when phones are searched, and of the likely impossibility to the searches’ effects on privacy.

Indeed, the Justice Cromwell’s opinion is striking in the extent to which it seems to favour the interests of law enforcement. It seems much more concerned with the efficacy of police investigations than with the rights of the persons these investigations target. One wonders whether Justice Cromwell was swayed by his conclusion ― irrelevant and apparently unsupported ― that the robbery of which Mr. Fearon is accused is “a crime that has become depressingly routine.” [5] We can only hope that this attitude will not affect other, perhaps more significant, cases in the future.