Interception Followed by a Fumble

What sort of authorization do the police need in order to obtain copies of text messages a person sends or receives? That was the issue which the Supreme Court decided today in R. v. TELUS Communications Co., 2013 SCC 16. If obtaining copies of text messages is an “intercept” within the meaning of s. 183 the Criminal Code, or something like it, then a special warrant for intercepting private communications, governed by Part VI of the Code, is required. Otherwise, it was enough for the police to obtain a “general warrant,” which is rather less difficult to get than a warrant to intercept. The parties agreed that, generally speaking, a Part VI warrant is required for reading a person’s text messages as soon as they are sent by means of special equipment installed by the telecommunications provider, which apparently is the only way to read texts sent between users of most Canadian telecommunications companies. But, unlike its competitors, Telus stores copies of texts sent by or to its users on its computers. So when the police sought a warrant to force Telus to hand over copies of texts that two of its users would send in the following couple of weeks, they thought that this was not going to count as an intercept within the meaning of Part VI of the Code, because they wouldn’t be reading the messages as they would be sent, but only accessing copies after a (little) while. But the majority of the Supreme Court found that what the police did was in fact an interception or something essentially similar, and, therefore, that they fumbled in not obtaining the appropriate Part VI warrant.

Three judges―Justices LeBel, Fish, and Abella―found that what the police did amounted to an intercept. Justice Abella’s opinion notes that the definition of “intercept” in s. 183 of the Code is broad and not exhaustive―it ” includes listen to, record or acquire a communication or acquire the substance, meaning or purport'” of a communication intended to be private. Justice Abella also insists that the understanding of “intercept” must  evolve to protect private communications that use new technologies no less than those that use those that existed at the time the statutory provision was drafted. It “must … focus on the acquisition of informational content and the individual’s expectation of privacy at the time the communication was made” (par. 36). Text messaging is not fundamentally different from ordinary conversation, and must be protected in the same way; nor should the specific way in which one telecommunications provider handle text messages deprive its clients of their privacy rights. The fact that Telus stores its clients’ messages on its computers is thus immaterial. The police ought to have obtained a Part VI warrant to read the messages they were interested in.

Two other judges―Justices Moldaver and Karakatsanis agree with this result, but they prefer not to decide whether what the police did  really was an intercept. It is enough that it was functionally similar to one. Because the benefit they derived from proceeding as they did was the same as they would have from reading text messages as they are sent, for which a Part VI warrant is incontrovertibly required, it was not enough to proceed under a general warrant, as they did, since a general warrant is only available when no other procedure provided by the Code is relevant. Justice Moldaver accepts “that as a technical matter, what occurred here was different from what would occur pursuant to a Part VI authorization,” but not  “however, that that fact is determinative in light of the identical privacy interests at stake” (par. 68). The privacy interests at stake help us understand the purpose of the protections which Parliament crafted before any investigative technique contemplated by the Code can be authorized, and the general warrant should not be available for police to circumvent these purposes by somewhat modifying the form, without altering the substance, of the investigative techniques they use.

Chief Justice McLachlin and Justice Cromwell dissent. They argue that what the police sought to do here was not to intercept private communications, but to obtain the disclosure of communications that had been (lawfully) intercepted by someone else (namely Telus), which is outside the scope of s. 183 of the Code, making a Part VI unnecessary. They also disagree with Justice Cromwell’s arguments that general warrants should be used only exceptionally and not as a matter of course.

Interestingly, Justice Cromwell’s opinion looks more like a majority one (for example it uses the internal headings that are usual in majority opinions) than Justice Abella’s does.  Justice Abella’s opinion also reads like a response to Justice Cromwell’s arguments―something more commonly seen in, and perhaps more suitable for, a dissent than a plurality opinion. I wonder, though of course we are likely never to know for sure, whether Justice Cromwell’s opinion was intended to be that of the majority, or at least the plurality, albeit a plurality dissenting as to the result. Perhaps Justice Abella’s would-be dissent persuaded Lebel, and maybe Justice Fish, and they switched from agreeing with Justice Cromwell to agreeing with her. (I’m guessing that Justice Fish, who is the Court’s most consistent civil libertarian, more likely agreed with Justice Abella from the start.)

For what it’s worth, I agree with the outcome of the case. The majority is right that Telus’ peculiar ways of handling text messages shouldn’t matter, and that privacy protections should be, as far as possible, consistent across the different ways in which we communicate. Whether Justice Abella’s approach or Justice Moldaver’s is preferable, I cannot tell. I think both opinions are thoughtful and interesting (and I have only given the bare bones of Justice Moldaver’s here). I hope that they will come to some form of synthesis in the future.

NOTE: This happens to be my 200th post. It took me a year less 10 days. Not too bad, I daresay.

Remain Nameless

I wrote in the past, here and here, about the serious problems that can result from people’s involvement in lawsuits, and details of their private lives and quarrels being exposed for all to see in court decisions available on the internet. But bad as it is if your name being associated with a lawsuit prevents you from getting a job or lets your neighbours know things about you that you don’t want them to, the dangers are worse for some people, as a case now before the Québec Court of Appeal illustrates.

The case concerns the constitutionality of the requirement of s. 59 of the Civil Code of Québec that a person applying for a change of name in Québec be a Canadian citizen. The appellants, who brought the constitutional challenge, are a parent and child who were granted refugee status because of a risk of persecution by the state and/or their relatives, including the spouse/other parent in their native country. In order to avoid the spouse tracing them in Canada, they seek to have their names changed. But s. 59 CCQ prevents this until they become Canadian citizens―which will not happen for several years at best. The Superior Court dismissed their constitutional challenge for lack of service to an interested party―the spouse/other parent (escaping from whom is the whole point), and they are appealing.

They have also brought a motion to ensure the confidentiality of the proceedings, on which the Court ruled last week in Droit de la famille 123545, 2012 QCCA 2224. The appellants asked for

the right to proceed anonymously, a prohibition on access to court records through a permanent sealing order, a prohibition on access to any resulting judgment unless any passage that could be used to identify the appellant, the child and the other parent have been removed, as well as a publication ban designed to protect the identification and location of the appellant and the child (par. 16).

As the Court pointed out, there are important considerations at stake. On the one hand, there is the principle of open court, which is especially compelling in this case since it involves a challenge to a the constitutionality of a statute. But “[o]n the other hand, the appellant and/or the child would face the likelihood of serious harm, including the risk of kidnapping and even death, if some relatives were made aware of their whereabouts” (par. 15).

Balancing these factors, the Court granted the motion in part. It allowed the appeal to proceed anonymously, using pseudonyms, rather than only banning the publication of identifying information (while still making it available to media or lawyers) as is usual in family cases in Québec. Instead of sealing the entire court file, however, it ordered the creation of two separate files, one sealed, and the other, accessible to the public, from which identifying information will have been removed. The Court also refused to ban the publication of judgments, so long as they do not identify the appellants. It did grant the ban on publication of identifying information, which is already standard practice in family matters in Québec.

Sounds right to me. The decision on the constitutional challenge itself will be interesting. Stay tuned.

The Future is Even Creepier

There is an interesting story in today’s New York Times that brings together a couple of my recent topics, the tracking of internet users by the websites they visit and the use of the data thus generated in advertising, about which I wrote here, and the use of target-specific outreach and advertising by President Obama’s re-election campaign, about which I wrote here. There are even, for good measure, overtones of human dignity there.

The story is about the way the data gathered when we use the internet, whether just browsing or searching for something in particular, are then used to throw those annoying targeted ads at us wherever we go. The data is collected by computers of course; it is computer algorithms, too, that analyze it and use it to assign us to some fine-grained category (depending on our inferred interests and means); and it is still computers that sell the right to show us a display ad to companies that might be interested in the specific category of consumer each of us is deemed to belong to.

This is roughly similar, if I understand correctly, to what the Obama campaign did in studying the data it had collected about voters and using it to target each person specifically according to his or her likely interests and concerns, except that the field of application here is commerce rather than politics. And just as some people have doubts about the morality of that tactic in the political realm, there are those who are convinced that its application in the commercial one is immoral. The Times quotes a consumer-rights advocate as saying that “[o]nline consumers are being bought and sold like chattel [sic]. … It’s dehumanizing.” As with what the Obama campaign did, I’m not sure about that. I’m not convinced by the description of the process as selling people―it involves selling information about me, and the right to show me a message on which I remain free to act or not, not my personhood. I don’t feel dehumanized by those ads―just creeped out, which, I think, is a very human reaction, by the way (I doubt that cattle are creeped out by being sold).

Perhaps there is an echo here of the debate, in human dignity scholarship, over whether dignity and its violations are an objective matter, meaning that one’s dignity can be violated even though one doesn’t feel that it is ,or a subjective one, meaning that one’s perception is determinative. (A classic example of this problem is the controversy over dwarf-tossing: the dwarf consents to being thrown around for sport and makes money out of it―but can the state prohibit the activity regardless, on the ground that it is a violation of his dignity even if he doesn’t think it is?)

I should note one possible difference between what is happening in the commercial advertising context and what the Obama campaign did. The companies that track internet users claim that those whom they track are not identified in any recognizable fashion. When they sell the right to show me ads to advertisers, they might describe me as something like “the guy who reads legal blogs and news websites a lot and has been looking at cell phones recently.” The Obama campaign, of course, was identifying people by name, address, etc., in order to reach out to them. So maybe the internet-ad people are less creepy than the politicians. But maybe not. The Times’ article suggests people are very skeptical about the actual anonymity of internet users tracked by advertisers, so the difference might be illusory.

As I said above and in my previous posts, even if this is not immoral and/or illegal, it is creepy. Perhaps “do not track” features of internet browsers will save us from the onslaught of creepiness. But not only are advertisers trying to fight them but, as they are pointing out, their use might undermine the bargain at the foundation of the internet―in exchange for putting up with ads, we get to enjoy all sorts of great content (such as this blog, right?) for free. Perhaps we are now finding out that the bargain was a Faustian one. But it’s likely too late to get out of it.

The Future Is Creepy

I had the chance today to be at a talk by two of the members of the legal “brain-trust” of President Obama’s re-election campaign, NYU’s professors Rick Pildes and Sam Issacharoff. (I have to brag: it was one of those moments that make NYU the best law school in the world.) Yet although they spoke a bit about the specifically legal work they did for the campaign, the main topic of their remarks was the impressive data-mining operation that the campaign deployed to identify its likely supporters and make sure that support translated into votes. Using publicly or commercially available information, the campaign set up a massive database containing prodigious amounts of information on millions of voters, and used this information to make its pitch to these voters in ways designed (and tested) to be the most effective. According to profs. Pildes and Issacharoff, as well as this account of the data operations by CNN/Time and an envious paean by the Republican columnist Marc Thiessen in the Washington Post, this was fantastically effective. Profs. Pildes and Issacharoff told of the data people on the Obama campaign having predicted the outcome of the early voting in Ohio to within a few dozen votes―out of more than 1,600,000. (Over at the Volokh Conspiracy, however, Ilya Somin had some anecdotal evidence that not everything worked quite that mind-blowingly well.) Assuming that the data campaign really was as effective as insiders claim, its success has some interesting implications, both in the realm of law and in that of political philosophy. (And in that of practical politics too, naturally, but I try to stay away from that here.)

Legally, one obvious place for investigation seems to be privacy law. I cheerfully admit, however, that my knowledge of the subject is, at present, nil, especially as regards the United States. In Canada, there is a patchwork of federal and provincial statutes regulating the collection of personal information of the sort the Obama campaign used (one example that came up several times in the discussion today was magazine subscriptions, which apparently tell quite a lot about one’s politics). Some of these statutes apply to governmental entities; other to the private sector. For the most part, they do not apply to political parties, but they might impede the parties’ collection of information from other sources. They might also be expanded to cover political parties (and other non-profit organizations).

If they are, or to the extent that privacy legislation does apply to parties, there arises a further question, suggested by a case in which the Supreme Court of Canada just granted leave to appeal, as the blog The Court reports. Very briefly, the dispute is about whether preventing a union, pursuant to privacy legislation, from filming people crossing its picket lines is a violation of its freedom of expression. The Alberta Court of Appeal held that it did. If that decision is upheld, it would seem a logical, though probably not an obvious, step to argue that preventing a political party from creating a database it needs to mount an effective campaign is a violation of its Charter rights, notably its right effectively to participate in the political process, which the Supreme Court, in Figueroa v. Canada (Attorney General), 2003 SCC 37, [2003] 1 S.C.R. 912, held was part of s. 3 of the Charter.

Moving from law to political philosophy, the obvious issue to think about is the morality of this enterprise of targeting individual voters on the basis of personal information about them. The (admittedly few) friends with whom I have discussed it think it is ethically troubling. I’m not sure about that, but I do think it is creepy. Yet there is, maybe, a positive spin to be put on it. What the Obama campaign did was, in effect, a shift from trying to persuade people to support it to identifying those who already supported it, more or less, and making sure that they voted. This is disturbing if we hold to the high-minded notion that election campaigns are about persuading voters. But is this notion so high-minded? Is it so good for democracy if voters are (only) thinking about politics and deciding to vote one way or the other during the 35 (in Canada) or 60 (in the US) days of an election campaign? Arguably not―the process of making up one’s mind should be (more or less) permanent. If an election campaign is the time to reveal preferences rather than to shape them, then the shaping of the voters’ preferences must take place at all times between elections; this means that politicians must be constantly engaged with the electorate, and that might just be a great thing, insofar as it would blunt the not uncommon criticism of representative democracy as being democratic only once every four years. Yet perhaps this is too rosy a view. Constant engagement with the electorate may well degenerate into populism; there is a reason most countries have elections every four or five years, rather than more frequently. And anyway, it’s not clear that (most of) the electorate has the appetite for such engagement. And even if those worries are unfounded, the creepiness factor remains―though I suppose we will get used to it soon enough.

I conclude on an even creepier, indeed perhaps paranoid thought, blending the legal and the political strands of my reflection. The Obama campaign’s database of voters and information on how effectively to communicate with them is immensely valuable. Mr. Obama himself has no use for it anymore, since he cannot run for re-election. But to those who aspire to succeed him, it would be invaluable. And legally, as profs. Pildes and Issachoroff told us, the database belongs to him, or more precisely to his campaign committee, over which he―not the Democratic Party―has control. Is it paranoid to suppose that the control of this amazing resource will allow him effectively to designate his successor by handing over to him or her a weapon which no challenger could hope to match? If so, the future might be even creepier than we think.

UPDATE: The New York Times also has a story on this, focusing on how data analysis drove the Obama campaign’s purchases of TV advertisements.

UPDATE #2: The post as originally written was quite obviously wrong in stating that private-sector privacy legislation probably applied to parties. I have re-written that passage. I discuss the issue of privacy and political parties in more detail here.

A Question for the SCC

I wrote on Friday, in a post about A.B. v. Bragg Communications Inc., 2012 SCC 46, the Supreme Court’s recent decision allowing a victim of cyber-bullying to bring her defamation suit against the person responsible for it anonymously, that “the interesting question” about the decision is how far does its principle extend:

In other words, is this a case about cyber-bullying of children, or about any form of unpleasantness involving children, or about cyber-bullying generally, or about something broader still?

I am not the only one asking the question. The blawg All About Information does too, in its own comment on A.B., wondering “about the scope of the class the Court intended to protect.” As it observes,

[s]ome text in the decision would suggest the class is limited to children subject to sexualized cyberbullying … At the same time, the Court made a number of broad statements about the impact of bullying on children in general, whether online or in the physical world and whether sexualized or based on some other vulnerability.

Its conclusion is that

[p]erhaps the best way to read the decision is that its binding effect extends to sexualized cyberbullying, but it is also authority for like protection in other bullying scenarios experienced by children.

For my part, I still think that some of what the Court said can used, at least as a basis for arguments, in an even wider spectrum of cases: cases of cyber-intimidation or harassment where the victim is an adult, or perhaps other sorts of claims where the victim might be deterred from going to court by the publicity that such a process can bring, like defamation.

Only future cases will tell whether any of that is true.

There’s Nothing in That Name

This morning, the Supreme Court delivered a decision that is a further small step in the debate about the right of litigants to privacy and the right of the public to know what goes on in our courtrooms. I blogged about these issues here and here.

The applicant in the case, A.B. v. Bragg Communications Inc., 2012 SCC 46, is a teenage victim of cyber-bullying. Someone created a fake Facebook profile using her name and picture and wrote all manner of nasty things there. In order to sue that person for defamation, she applied for a court order to compel the internet provider associated with the I.P. address that was used to create the fake profile to disclose the name of the person to whom the address belonged. As part of that application, she also requested the right to proceed anonymously and a ban on the publication of the contents of the fake profile.

The internet provider did not oppose this application, but Global Television and the Halifax Herald did oppose the application for the right to proceed anonymously and the publication ban. They succeeded both at first instance and on appeal, with the courts concluding that the applicant failed to show how the publication of her name and details of the bullying she suffered would harm her. (The media then failed to defend their position before the Supreme Court, which appointed an amicus curiae to do it. Perhaps it dawned on them, rather late in the game, that this was not the best case to defend the freedom of the press.)

The Supreme Court allowed the appeal in part, in a unanimous decision by Justice Abella, holding that evidence of harm to the individual applicant was not necessary in a case such as this to support the right of the applicant to proceed anonymously. “Objective harm”―that is, a legal presumption of harm―is sometimes enough to justify banning the publication of certain details about legal proceedings. This is a case that warrants drawing the presumption. The law is especially solicitous of children’s privacy because it recognizes their vulnerability, and “[i]t is logical to infer that children may suffer harm through cyberbullying” (par. 20). Furthermore, says Justice Abella (par. 20)

we must consider the resulting inevitable harm to children — and the administration of justice — if they decline to take steps to protect themselves because of the risk of further harm from public disclosure.

As for the public interest in open courts, it is not much affected by allowing a victim of cyber-bullying to proceed anonymously. Just as in sexual assault cases where the publication of the victim’s identity is prohibited, the media can still attend the hearings, see and hear the evidence, and present the details of the case, except the victim’s name, to the public. Once the applicant is allowed to proceed anonymously, there is no need for a further publication ban, says Justice Abella, because the harm that she might suffer would result from tying the allegations of the fake profile to her, and not for their mere airing.

That seems like the right decision, so far as it goes. The interesting question, however, is whether it can go further. There is some ambiguity, as is usual in common law cases, especially those addressing novel issues, about which of the arguments that the decision relies on are essential and which are not. In other words, is this a case about cyber-bullying of children, or about any form of unpleasantness involving children, or about cyber-bullying generally, or about something broader still?

The decision makes much of the special vulnerability of children and of the special harms of cyber-bullying. But must the two be present in a case in order to trigger the presumption that harm to the victim will result from the publication of his or her name? What if the case is about old-fashioned schoolyard bullying? Or what if it’s cyber-bullying, but the victim is an adult? Justice Abella also mentions the risk that victims will be discouraged to come forward if the nasty things said about them will end up all over the media. That’s surely right, and not only in cyber-bullying (and sexual assault) cases. It affects defamation cases generally, for instance, since the media is entitled to report on the allegedly defamatory statements if they are the object of litigation. And the idea that the harm to freedom of expression and freedom the press from the anonymization of court cases is minimal can be applied in all sorts of cases, as I discuss in my previous posts on this topic.

Only future cases will tell what the courts will make of these possibilities.

What’s in a Name?

The CBC has a story about criticisms of Ontario’s rules which allow the publication of the parties’ names in family law court decisions. The availability of these decisions online, especially on CanLII, makes them widely accessible―and people are concerned about others learning the details of their divorces, their personal information, or even seeing allegations made against them, with or without basis, by acrimonious exes. Some people say that a rule like that in Québec, where parties (and their places of residence) in family law cases are identified only by initials would be better to protect the parties’ privacy, while still letting the public and the media know what issues court cases are about and how the courts deal with them. But judges and government officials seem uninterested in considering such a change, pointing to the fact that courts can already order elements of the evidence to be kept confidential.

I wrote a long post on this same issue―though not only in family law cases―last month. About Québec’s rule of anonymity, I wrote that it is based on

[t]he idea―and I think it is a sound one―… that (many of) the positive effects of publicity can result from publishing the court’s decision but not the parties’ names. From the perspective of keeping the courts accountable, the publication of the parties’ names probably matters little; what is important is that journalists, lawyers, and interested citizens know what evidence was before the court and what the court did with it. On the other hand, there is also a legitimate public interest in knowing what is happening to whom, or who exactly is involved in stories that attract attention.

I didn’t know, and I still don’t, how to balance these considerations. I concluded with some questions, which bear repeating:

Does our general presumption of publicity of court materials still make sense in this new reality that the internet has brought about? Or should we re-balance free speech and privacy, perhaps by making anonymization the default rule? If so, should we make exceptions? A blanket anonymity rule might be problematic, because there are cases where knowing who is involved is very much in the public interest. But are exceptions workable? If not, does this mean we should abandon anonymity after all?

The Only Thing Worse Than Being Talked About

Is being talked about in a court decision that’s available online for all to see. At least if you’ve sued a former employer, and are looking for a new job. At the Volokh Conspiracy, Eugene Volokh reports on a case in which a man who believes he lost employment opportunities because prospective employers found out about his lawsuit against a previous employer sued companies providing both general internet search and specialized legal databases for making available online materials relating to that litigation. The complaint alleged violations of a variety of statutory and common law rules, but the court dismissed all these claims. The court added that publication of matters of public record, such as court proceedings and materials is, in any event, constitutionally protected.

I think that, in these circumstances, the outcome would be the same in Canada. I cannot see how the publication of court materials, unless the court itself ordered them to remain confidential, can amount to a common law tort; nor am I aware of any statutes that would prohibit it regardless of the circumstances (more on limited exceptions shortly). The constitutional situation is a bit different, since the Canadian Charter of Rights and Freedoms does not directly apply to the common law, though it would apply to a statute.  That difference wouldn’t matter here.

In any case, what concerns me right now is not the current legal situation or the question, which prof. Volokh addresses, whether there “is an adequate justification for suppressing speech about legal documents that have been released by the courts as a public record.” (His response is negative, and I think he is right.) It is the antecedent question whether any and all legal documents should be made matters of public record.

Generally speaking, our legal system favours publicity. The publicity of judicial proceedings helps ensure the impartiality, and perhaps also the quality, of judicial work. As with other branches of government, publicity is important for accountability. Closed, secret, or inaccessible courts are a hallmark of authoritarian political systems. In Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, the Supreme Court has held that the openness of court proceedings, including the ability of the media to report on them, is an important constitutional value.

Important, but not absolute. The usual presumption of publicity can be overturned in particular cases, where the disclosure of elements of the evidence, normally a matter of public record, may compromise the impartiality of the proceedings (for example by influencing potential jurors) or reveal privileged information, such as commercial secrets. Such cases are regarded as exceptional; importantly, a party who wants the court to make some element of the case confidential has to ask the court to do so, which can be expensive and which many will not think of doing. (For example, refugee claimants rarely ask that their cases before the Immigration and Refugee Board or the Federal Court be anonymized, although if memory serves well, they are entitled to do so.)

But there are also some categorical rules which apply automatically, without a party having to do anything. At issue in Edmonton Journal was one such rule, prohibiting the publication of all sorts of details about family law cases. The Supreme Court held that the law was much too restrictive and thus an unconstitutional restriction of the freedom of expression. But narrower restrictions exist. For instance the names of minors involved in criminal cases are not published – the defendants are known by their initials. And in Québec, family law cases are identified by a number, rather than the name of the parties, with the names of the parties and the places where they live being replaced by initials in the court’s reasons (incidentally, the Alberta statute in Edmonton Journal allowed the publication of these details; Québec’s rule is essentially its mirror image).

The idea – and I think it is a sound one – seems to be that (many of) the positive effects of publicity can result from publishing the court’s decision but not the parties’ names. From the perspective of keeping the courts accountable, the publication of the parties’ names probably matters little; what is important is that journalists, lawyers, and interested citizens know what evidence was before the court and what the court did with it. On the other hand, there is also a legitimate public interest in knowing what is happening to whom, or who exactly is involved in stories that attract attention.

And now I’m coming back to the case I considered at the beginning of the post. So long as access to court materials, or even to judgments, was time-consuming, difficult and expensive, it mattered little that publicity was the rule in most cases. Realistically, only news media would bother accessing these records, and then only in a few cases which attracted sufficient attention to make the effort and expense worthwhile. The internet changes that. It is fairly easy, and relatively cheap or even free, to find materials (at least judgments) from any case one is interested in. Indeed, one need not even know there is a case. It is enough to google someone’s name to find court decisions involving that person. An employer who would not have gone to the courthouse to rummage through files just to see if a prospective employee had ever been involved in litigation can find this out in a matter of seconds from the comfort of his office. Indeed, he may find it accidentally – he might google an applicant’s name without the intention of finding out about the applicant’s litigation history, looking for something else – but that just comes up. However the information comes out, it can be very – and unfairly – damaging, As prof. Volokh points out,

[m]any employers would likely be wary of hiring someone who had sued a past employer, because they might view this as a sign of possible litigiousness. Even if the earlier lawsuit was eminently well-founded, a prospective employer might not take the time and effort to investigate this, but might just move on to the next candidate, especially if [the candidate] is one of several comparably well-credentialed candidates for the same spot.

So here are some questions. Does our general presumption of publicity of court materials still make sense in this new reality that the internet has brought about? Or should we re-balance free speech and privacy, perhaps by making anonymization the default rule? If so, should we make exceptions? A blanket anonymity rule might be problematic, because there are cases where knowing who is involved is very much in the public interest. But are exceptions workable? If not, does this mean we should abandon anonymity after all?

I don’t have answers to these questions. I would love to hear from you.

Emergency Wiretaps and Privacy Rights

Well, the Supreme Court of Canada has great timing. Or maybe I do, but saying that would be immodest, right? In any case, the day after I wrote that the Court latest privacy decision was a mess, it has released its decision in R. v. Tse, 2012 SCC 16, addressing the conflict bewteen the right to privacy protected by s. 8 of the Charter and s. 184.4 of the Criminal Code authorizing warrantless interception of private communications by a peace officer if

(a) the peace officer believes on reasonable grounds that the urgency of the situation is such that an authorization could not, with reasonable diligence, be obtained … ;
(b) the peace officer believes on reasonable grounds that such an interception is immediately necessary to prevent an unlawful act that would cause serious harm to any person or to property; and
(c) either the originator of the private communication or the person intended by the originator to receive it is the person who would perform the act that is likely to cause the harm or is the victim, or intended victim, of the harm.

The Court’s decision is unanimous, and authored by its two newest members, Justices Karakatsanis and Moldaver. The Court holds s. 184.4 unconstitutional, because it does not create any mechanisms by which the peace officers engaging in warrantless wiretapping can be held accountable. Parliament now has a year to re-write the legislation to bring it in conformity with the Charter.

Generally speaking, warrantless searches (including interceptions of private communications) are contrary to the Charter. But they can be justified in emergencies. The question in this case, says the Court, is whether s. 184.4 “strike[s] a reasonable balance between an individual’s right to be free from unreasonable searches or seizures and society’s interest in preventing serious harm?” The Court spends a considerable time on clarifying the interpretation of s. 184.4, ensuring that it remains a narrow and exceptional source of authority, to be used only in circumstances of “dire emergency.” It also expresses concern at the fact that this authority might be conferred on too many people – not only police officers but other “peace officers”, including mayors and prison guards. But since this case implicates police officers, there is no record on the basis of which to conclude that this renders s. 184.4 over-broad.

The trouble with s. 184.4, says the Court, is that, unlike other provisions allowing interception of private communications, its use is subject to no after-the-fact accountability measures. At least one such measure, disclosure to the parties whose communications were intercepted, is constitutionally required. Others, such as reporting to Parliament and record-keeping would be welcome, but are not necessary. In its present form, s. 184.4 does not meet the requirements of s.8 Charter. Furthermore, it cannot be saved under s. 1, since a less restrictive measure – a similar provision incorporating after-the-fact notice requirements – is easily available to Parliament.

Seems like a good decision to me. Interestingly, expectations of privacy do not feature at all in the Court’s analysis. It does not ask itself whether it is generally expected that infringements of our privacy will be reported to us. It simply holds that that the Charter requires that they be. Perhaps this is one way out of the problem which so bothered Judge Kozinski and about which I wrote yesterday. Still, courts cannot operate in a vacuum. When they ask themselves whether a search of seizure is “unreasonable,” they bring their, and society’s, expectations to the table. We cannot count on courts to protect our privacy to a much greater extent than we want it protected.

Privacy in the Past, Present, and Future

Our own actions – individual and collective – set the upper limit of our privacy rights. We will never have more privacy rights than we care to have, although we often have fewer. One stark illustration of this idea comes in Isaac Asimov’s short story “The Dead Past,” in which a group of scientists build and, despite the government’s best efforts, thoughtlessly disseminate the instructions for building a “chronoscope” – a machine for viewing any events in the (recent) past. Their original purpose was historical research, but the chronoscope is not very useful for that; what it is very good for is snooping and voyeurism. The story ends with the government official who tried and failed to stop the protagonists wishing “[h]appy goldfish bowl to you, to me, to everyone.”

The internet, especially Web 2.0, is (almost) as good as the chronoscope, argues Alex Kozinski, Chief Judge of the U.S. Court of Appeals for the 9th Circuit, in a short essay published in the Stanford Law Review Online. It also allows everyone to learn all about anyone, provided that the person – or indeed someone else – posted the information on the internet at some point. And the fact that people share their every thought and deed online shapes society’s expectations of privacy, which are the key to what constitutional protections we have in this area. Those parts of our lives which we do not expect to be private are not protected from observation at will by the government. And if we do not expect anything to be private, then nothing will be.

“Reasonable expectations of privacy” are also key to defining privacy rights under the Canadian Charter of Rights and Freedoms. The Supreme Court’s latest engagement with the question of just what expectations of privacy are reasonable, in R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211, produced something of a mess. The issue was whether the installation without a warrant of a device that measures the electricity consumption of a house breached the owner’s reasonable expectation of privacy. Four judges said no, because general information about electricity consumption does not reveal enough to make it private. Three said no because the law entitled to owner to ask the utility not to hand over such information to the police, and he had not exercised this right. Two said that the information was private. But what seems clear is that for Canadian law too, what we think about our privacy and what we do about it, individually and collectively, matters.

Are we then doomed, as Judge Kozinski suggests we might be? Perhaps not. With respect, his claims are a little too pessimistic. Judge Kozinski collects a great many frightening anecdotes about people’s willingness to wash their – and others’ – dirty laundry in public. But anecdotes seldom justify sweeping conclusions. And some studies at least seem to show that people do care about their privacy more than the pessimists assume,  if not always in ways or to an extent that would satisfy the pessimists. Old expectations of privacy might be fading, but new ones could emerge, along different lines. Judge Kozinski is right that the law cannot do much to protect people who do not care. But we must hope that he and his colleagues, as well as legislators on both sides of the 49th parallel, will be mindful of the possibility that changes in privacy expectations can go in both directions.