Tag: surveillance

What Was Equilibrium Like?

Do police need a warrant before pretending to be a child to attract would-be molesters?

It’s been some time now, but the Supreme Court’s decision in R v Mills, 2019 SCC 22, is worth a comment. This is yet another case in which the Court had to address the application of the right, protected by section 8 of the Canadian Charter of Rights and Freedoms, “to be secure against unreasonable search or seizure” to new-ish technologies. These cases often divide the court, but seldom as much as Mills, where Justice Brown signs a leading opinion for himself and Justices Abella and Gascon; Justice Karakatsanis has a concurrence to which the Chief Justice signs on; Justice Moldaver agrees with Justice Brown (whose opinion is thus, in effect, a majority one) and Justice Karakatsanis; and Justice Martin also concurs, but on grounds quite different from her colleagues’.

The issue in Mills had to do with the privacy interests that one might have in one’s online conversations. Justice Brown usefully sets out the facts. The case developed from

a sting conducted by a police officer, who posed online as a 14-year-old girl, with the intent of catching Internet child lurers. Over two months, [Mr.] Mills sent several messages, using Facebook and Hotmail. Eventually, he was arrested in a public park where he had arranged a meeting with the “child”, and was charged … with luring a child via the Internet. The entire operation occurred without prior judicial authorization. Using a screen capture software, the police introduced a record of the emails and messages as evidence at trial. [2-3; paragraph break removed]

Mr. Mills alleged a violation of his section 8 rights, and sought to have the evidence excluded. To decide whether his rights were indeed at stake, the Court must determine whether he had a subjective expectation of privacy in the subject-matter of the alleged search or seizure, and whether this expectation was objective. As usual, it is this last question ― as Justice Brown notes, a “normative question about when Canadians ought to expect privacy, given the applicable considerations” [20; emphasis Justice Brown’s] ― that causes difficulty here.

For Justice Brown, the key to the case is to be found in “the nature of the investigative technique used by police, and the nature of the relationship between the communicants [sic].” [20] In Justice Brown’s view, in light of children’s special vulnerability, “adults cannot reasonably expect privacy online with children they do not know” [23] ― or persons whom they believe to be such children. The relationship here was one between strangers ― since the purported child was in fact a creature of the police ― and the police, obviously, knew this before they started looking at the communications between that “child” and the accused. Unlike in cases where the police intercept or obtain communications between individuals the nature of whose relationship to one another they do not know, they can be certain of breaching no one’s reasonable privacy interests, and so do not need judicial authorization.

Justice Karakatsanis also finds that Mr. Mills could not reasonably expect the messages at issue to remain private. But in her view, that is because the state, acting through the undercover police officer, was the other party to the conversation, and one cannot expect one’s messages to remain private from the party to whom one deliberately sends them. Police officers do not infringe anyone’s privacy rights be speaking to them, even when they are undercover. Conversations via online messaging or email are no different. While the surreptitious recording of what is ostensibly a purely oral conversation makes what was meant to be ephemeral permanent and so has privacy implications, this issue does not arise when writing was the originally chosen medium of communication. Justice Karakatsanis alludes to concerns raised by interveners about police officers posing as persons to whom individuals might want to confide personal information, but decides that they need not be addressed in this case.

Justice Martin takes a different view of the privacy concerns raised by Mr. Mills. For her, the case raises the issue of “whether the state should be permitted to conduct warrantless surveillance of private, electronic communications, or whether that state surveillance should be regulated”. [72] The answer is that “[i]f the police wish to acquire a record of those communications, … such investigative activities must be regulated. The precise nature of such regulation is best left to Parliament”. [72]

Like Justice Karakatsanis, Justice Martin refers to the distinction between transient and permanent communications. But to her mind, the salient point here is that the distinction is being erased:

Online communications are inherently recorded. Where the intrusive technology used to be in the hands of the state, it is now in our back pockets. … [T]he electronic communications in the case at bar constituted both the conversation and the surreptitious electronic recording of that conversation. [86; 93]

Justice Martin endorses the concerns expressed in cases going back to the 1970s that people will, in effect, self-censor if they know that their words may be recorded and publicized. Indeed, Justice Martin worries about government “subjecting the public to surreptitious electronic surveillance on a mass scale”. [103] And since technology makes the existence of recordings inevitable, there need to be robust protections for their privacy. Nor can the state get around these protections by impersonating someone to whom a citizen may wish to speak privately; if it does so, the fact that the recorded words were addressed to the state agent is beside the point. On the contrary, “[t]he ability to fabricate alternative identities has never been more possible [sic] than it is now”, [106] and this reinforces the need for safeguards against the state taking advantage of this ability to elicit private information from citizens.

Justice Martin is also unimpressed by Justice Brown’s approach to the case. She thinks it inconsistent with the usual, content-neutral approach to section 8 cases. More importantly, saying that communications occurring between particular types of people ― such as those between an adult and a child who is a stranger to him or her ― are necessarily excluded from the scope of section 8 is inconsistent with that provision’s text, which guarantees rights to “everyone”, and

seeks to put courts in the business of evaluating the Canadian public’s personal relationships with a view to deciding which among them deserve Charter protection … Judicial (dis)approbation of an accused’s lifestyle has no place in the s[ection] 8 privacy analysis. [110]

Ultimately, however, Justice Martin finds that while the police breached the accused’s Charter right to be secure against unreasonable search and seizure, admitting the evidence they collected would not bring the administration of justice into disrepute. Thus she agrees with her colleagues about the result of the case, if little else. (As previously discussed here by Peter McCormick, Mills will count as a unanimous case in the Supreme Court’s statistics. It is anything but!)

To a striking degree, Mills illustrates Orin Kerr’s “equilibrium-adjustment theory” of constitutional protections against unreasonable search and seizure. In a nutshell, this theory posits that “[w]hen new tools and new practices threaten to expand or contract police power in a significant way” as compared to a (hypothetical) “year-zero” balance, “courts adjust the level of [privacy] protection to try to restore the prior equilibrium”. (480) Here, the tools and practices ― available both to the police and to the citizens (criminal and law-abiding alike) are online communication platforms that combine possible anonymity with the recording of conversations (and so, as just noted, the erasure of the demarcation between the spoken and the written word).

As equilibrium-adjustment theory predicts, Justices Brown, Karakatsanis, and Martin all frame their reasons as means to preserve or restore a balance of privacy that these developments threaten to disrupt. Thus Justice Brown insists that the means used by the police in this case “did not significantly reduce the sphere of privacy enjoyed by Canadians”. [20] For her part, Justice Martin argues that the “Court must identify the privacy interest [previous] cases sought to protect and ensure that it remains protected as the communication environment evolves”. [90] Justice Karakatsanis is perhaps a little less explicit about her own effort at equilibrium adjustment, by her insistence that written communications have not, in the past, been treated in the same way as oral conversations, and should not be so treated now is also in that vein, as is her concern that “[t]he alternative conclusion would significantly and negatively impact police undercover operations, including those conducted electronically”. [52]

But while all the judges in Mills agree on the importance of preserving the balance between privacy and the ability of police to investigate crime, it is not so clear where exactly that equilibrium really was. At equilibrium, was it the case that adults had no privacy rights in their relationships with children who were strangers to them, Justice Brown suggests? Or that the written word was not private in the way the spoke word was, as Justice Karakatsanis argues? Or, on the contrary, that all relationships, regardless of the parties’ status, and all conversations, regardless of the means used to carry them out, were entitled to privacy protections, as Justice Martin suggests?

Justice Brown’s attempt at defining equilibrium does not persuade me. As Steven Penney wrote in his (rather timelier than mine) comment on Mills on the University of Alberta Faculty of Law Blog, it is difficult, if not impossible, to tell when two persons are “strangers” to one another:

What degree of familiarity with an online persona is required before he or she ceases to become a stranger? Is it necessary to have met the person face-to-face in the offline world? Or is it enough to have had prior oral conversations (whether audio-only or video chats) online? And what, if any, degree of identity verification is required?

Meanwhile, the concept of “children” seems perfectly well-defined, in this context, as people under the age of 18, but this clarity might not be all it seems (because people lie about their age), and comes with its own set of problems. Are close-in-age relationships different? What about relationships between two minors? Why, indeed, draw a hard line at 18, especially outside the context of sexual crimes? Alternatively, must investigations of sexual crimes be treated differently than those of, say, terrorism?

One is tempted to suspect (Professor Penney, I think, hints at this too) that Justice Brown was looking for a very narrow basis on which to resolve this case. But the trouble is that an artificially narrow decision in a difficult case risks both being unprincipled and simply kicking the can down the road. Justice Brown’s opinion is in serious jeopardy on both these counts; indeed, I am inclined to declare it guilty on the second, even if a reasonable doubt might exist as to the first.

But what about the disagreement between Justices Karakatsanis and Martin? Perhaps this disagreement is the latest ― and probably not the last ― manifestation of a recurrent problem in cases about the application of section 8 of the Charter, which I described here when commenting on the Supreme Court’s decision in R v Marakah, 2017 SCC 59, [2017] 2 SCR 608, a case that considered the privacy of a text messaging conversation that one of the parties handed over to the police:

A number of legal issues arising out of new technologies, broadly speaking, have 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.

In Marakah, a majority of the court (which included Justice Karakatsanis) held that a reasonable expectation of privacy in the conversation existed, so that the police could not look at it without prior authorization, even with the consent of one of the parties. I think that decision could also be understood as an attempt at equilibrium-adjustment, intended to preserve the previously undoubted privacy of the exact content of personal conversations. Professor Penney argues that Justice Karakatsanis now tries attempts to “effectively overturn” Marakah.

But I’m not sure that this is fair, or that the problem of the newfound permanence of conversations is really what is driving the disagreement between Justices Karakatsanis and Martin in Mills. Justice Karakatsanis does not deny that (in Professor Penney’s words) “Marakah … puts automatically recorded text conversations on the same plane as surreptitiously recorded oral ones”. Rather, she wants to hold on to a distinction that, as I see it, Marakah did not foreclose: that between the state obtaining, by whatever means, a conversation to which it was not a party (as it had done in Marakah), and that between the state itself in effect being a party to the conversation. In the latter case, Justice Karakatsanis argues, “[t]he fact that the conversation took place in a written form … does not transform it into a search or seizure”. [45] In other words, for Justice Karakatsanis, as for the Marakah majority, oral and electronic conversations are alike; those that involve a state representative and those that do not are not.

And, so far as this goes, I tentatively think that Justice Karakatsanis is right: considered by itself, the (electronic) conversation between a suspect and an undercover police officer in Mills is not a meaningfully greater intrusion on the suspect’s privacy than a conversation with an in-person informant would have been. Of course,there is a word-for-word record of that conversation. But, as Justice Karakatsanis says, the suspect knows this in advance. It’s all good and well to proclaim that the “reasonable expectation of privacy” standard is normative, not descriptive; it’s about what people ought to expect, not what they actually expect. But the standard cannot be entirely unmoored from the facts and, in particular, from the fact that we know and indeed use tools (such as search functions) that rely on the fact that the words of our conversations are recorded in real time.

That said, there is also a different equilibrium-adjustment issue in Mills, and it is this issue which, I think, really drives the disagreement between Justices Karakatsanis and Martin: namely, whether the ability of the police to engage in online undercover surveillance will radically expand the use of this investigative technique. Justice Martin think that it will, and so wants to forestall this expansion of police power. She envisions “mass scale” surveillance, previously “inconceivable … due to the practical resource constraints of [in-person] undercover police work” [104] and because of the much greater variety of fictitious personas investigators might be able to adopt online. Justice Karakatsanis is skeptical about this (as is Justice Brown). It is very difficult to say who is right here. Justice Martin, I think is speculating about the future prospects of mass surveillance; for now, at least, I don’t see the prospect of pervasive police stings using fake online personas as anything more than a dystopian fantasy, albeit, to be sure, not an entirely implausible one. And, in fairness, Justices Karakatsanis and Brown are speculating too, hoping that this dystopia does not come to pass, or at least that its development, should it begin in the earnest, will be able to be checked then.

So let me finish with a thought on one way to help prevent the dystopian future. It will perhaps seem naïve, but I think it is actually important. There are two ways to reduce the odds of police investigations unduly intruding on citizens’ lives. One is to constrain investigations once they are launched by limiting the use of certain techniques, requiring warrants, etc. Section 8 of the Charter, and equivalent provisions of other constitutional instruments, do this but, as cases such as Mills illustrate, constructing good doctrine in such cases is not easy. The other way to keep police in check is to have fewer crimes for them to investigate in the first place. As Justice Gorsuch, of the US Supreme Court, observed just a couple of days ago in Nieves v Bartlett,

History shows that governments sometimes seek to regulate our lives finely, acutely, thoroughly, and exhaustively. In our own time and place, criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something. (Slip op. 1-2; that’s pp. 24-25 of the PDF) 

And of course, before one can be arrested, one can be investigated. Perhaps the Canadian situation is not as bad as the American one (I don’t know enough to tell) but, if so, we must work to keep it that way. And here, the Charter ― just like its counterparts elsewhere ― is not going to help us. Only sustained political opposition to overcriminalization ― and, ideally, sustainted political support for decriminalization of a great many things currently considered criminal ― will do the trick.

Was Scalia Spooky?

Antonin Scalia’s views on snooping, in the 1970s and later

The Globe and Mail‘s Sean Fine is as good a reporter as he is a bad analyst. Both of his qualities ― an impressive ability to find and tell a great story, and an unthinking belief in simplistic ideological classification of judges ― are on full display in his latest article, a fascinating story of how Antonin Scalia, then a professor at the University of Chicago, was commissioned to produce a report on “United States Intelligence Law” for the McDonald Commission, which investigated the RCMP’s espionage activities and whose eventual recommendations led to the creation of CSIS. Mr. Fine contrasts “[t]he report’s scrupulously impartial (for the most part) author” with the judge that he would become; the former, sensitive to privacy rights if also keen to ensure that intelligence agencies can operate effectively; the latter, in Mr. Fine’s telling, brazenly unconcerned with them, and condoning “torture in some circumstances”. But things are more complicated than Mr. Fine lets on.

Before I get to that, I’ll note little anecdote that Mr. Fine passes over, perhaps because this is a bit too inside-baseball for the Globe‘s readers. Mr. Fine explains that it was Peter Russel, who was the director of research for the McDonald Commission, who recommended then-professor Scalia’s hiring ― on the advice of Edward Levi (Scalia’s boss as Attorney-General in Gerald Ford’s administration) and Herbert Wechsler (a distinguished scholar, notably of the “neutral principles” fame). What Mr. Fine does not mention is that prof. Russel’s recommendation (a scan of which is included in the article) noted that Levi and Wechsler ranked Scalia ahead of none other than Robert Bork. (Prof. Russell, by the way, seems to have had a bit of an issue with names in that memo, referring to “Anthony” Scalia and “Richard” Bork.) Ironically, the Reagan administration would later rank Scalia and Bork in the same order when it came to making their appointments to the Supreme Court. Scalia was nominated in 1986, and confirmed by the Senate on a 98-0 vote; Bork was nominated in 1987 and rejected by the Senate after hearings so bitter that his name became a verb, in which his views and record were arguably distorted out of all recognition by Ted Kennedy and the latest recipient of the Medal of Freedom.

And, to get back to my point, this is a bit what Mr. Fine tries to do with the late Justice Scalia, albeit on a much smaller scale. He makes a point of noting that prof. Russell

would … later be appalled by the justice’s support of originalism – a judicial philosophy in which constitutional rights do not evolve over time, but stay rooted in the vision of the Founding Fathers of the United States. “Originalism is absolute nonsense”,

he quotes prof. Russell as saying. And he refers repeatedly to a “2007 speech” Scalia gave in Ottawa, in which “he was more the suspicious-of-too-many-legal-protections conservative”.  But Justice Scalia’s originalism was neither “nonsense” nor all bad for the protection of privacy rights against over-curious governments.

Prof. Russell, Mr. Fine, and those who think like them ― admittedly, a large contingent in Canada ― might just learn a thing or two from the expanding scholarship documenting the presence of originalism in Canada, and in some cases advocating the expansion of this presence. This scholarship includes (but is not limited to) recent articles by Sébastien Grammond and J. Gareth Morley focusing on the Supreme Court’s opinions on the appointment of Justice Nadon and Senate reform; an as-yet-unpublished paper by Asher Honickman, on federalism; Kerri Froc’s work on women’s rights; and the pair of articles that Benjamin Oliphant and I wrote last year. The first of these, which should come out any day now in the Queen’s Law Journal, shows that contrary to popular belief, the Supreme Court has not squarely rejected originalism, least of all what is arguably the dominant form of originalism now, one focused on the original meaning of constitutional texts (rather than their framers’ intentions or expectations). The second, due to come out in the UBC Law Review later this year, shows that, in fact, the Supreme Court resorts to originalist reasoning in a surprising variety of cases. If Prof. Russell is right that “originalism is absolute nonsense”, then not only has the Supreme Court never renounced it, but in fact large swathes of its jurisprudence (and of that of the Judicial Committee of the Privy Council), are nonsensical too.

But more directly relevant to my present topic is our discussion, in the first paper, of the contrast between Justice Scalia’s reasons, for a 5-4 majority of the Supreme Court of the United States, in Kyllo v United States, 533 U.S. 27 (2001), and Justice Binnie’s reasons for the unanimous Supreme Court of Canada in R v Tessling, 2004 SCC 67, [2004] 3 SCR 432. As we explain (actually, the credit here goes to Mr. Oliphant):

The issue, in both cases, was whether the use of a thermal imaging device by the police amounted to a “search” within the meaning, respectively, of the Fourth Amendment to the U.S. Constitution and section 8 of the Charter. In Kyllo, Justice Scalia … found that because information about what went on within the home ― however collected ― would have been secure from search and seizure at the time the Fourth Amendment was passed, the state cannot now invade that sphere of privacy through the use of new technology.

Justice Binnie, writing for a unanimous Supreme Court, disagreed… Justice Binnie rejected the relevance of Kyllo on the basis that it was “predicated on the ‘originalism’ philosophy of Scalia J.,” [61] and because it is not “helpful in the Canadian context to compare the state of technology in 2004 with that which existed at Confederation in 1867, or in 1982 when s. 8 of the Charter was adopted.” [62]

Tessling is an odd hill upon which to make a stand against originalism. Kyllo, which the Court in Tessling refused to follow, did not restrict constitutional meaning to those realities foreseen by the framers, as originalism does according to the “frozen rights” or “dead” constitution caricature frequently encountered in the Canadian literature. It did precisely the opposite. … Indeed, it is not clear to us just what Justice Binnie is actually rejecting in refusing to follow the “originalist” philosophy underlying Kyllo, or in stating that it is unhelpful “to compare the state of technology” in 2004 with what which existed in 1982. The logic of Kyllo was to deny that changes in technology can diminish the scope of constitutional protection over time; there was no “comparison” of technologies, because changes in technology were irrelevant to the interpretive question of what was protected. (25-26; a paragraph break and a reference removed)

We conclude that

In the ultimate result, and despite frequent and nebulous assertions that the Charter must be read in a “large,” “liberal,” and “generous,” manner, Justice Scalia’s originalist philosophy unquestionably resulted in a more general and robust protection for personal privacy than Justice Binnie’s “purposive” approach to interpreting section 8 of the Charter. (27)

Of course, this is not to say that Justice Scalia was always right, on privacy issues or on anything else. Indeed, this does not even prove that originalism is the better approach to constitutional interpretation than whatever it is that the Supreme Court of Canada is doing. But both originalism and Justice Scalia’s legacy are more complex than many Canadians, including Mr. Fine, tend to assume. We owe Mr. Fine for telling us a story that shed more light on the late Justice’s oeuvre. It’s too bad he tried to shoehorn that story into a simplistic ideological framework that is as misleading as it is useless.

Tell Them Carefully

Cross-border disclosure of wiretaps survives the scrutiny of a (politely) divided Supreme Court.

Last week, the Supreme Court issued its decision in Wakeling v. United States of America, 2014 SCC 72, upholding the release by Canadian authorities to the United States of recordings of Mr. Wakeling’s communications, which had been wiretapped by the RCMP acting pursuant to a warrant, and which the Americans used as a basis for requesting his extradition on drug charges. Three judges (Justices Moldaver, LeBel and Rothstein) found that the release of wiretaps to foreign states does not infringe the right, protected by section 8 of the Charter, “to be secure against unreasonable search or seizure”; one (the Chief Justice) found that section 8 was not engaged at all; and three (Justices Karakatsanis, Abella, and Cromwell) found that it was indeed infringed.

Section 193 of the Criminal Code prohibits the release of “intercepted” “private communication[s],” subject to a number of exceptions. One of these, par. 193(2)(e), applies

where disclosure is made to a peace officer or prosecutor in Canada or to a person or authority with responsibility in a foreign state for the investigation or prosecution of offences and is intended to be in the interests of the administration of justice in Canada or elsewhere.

Mr. Wakeling argued that this exception suffered from a number of constitutional defects: it was, he said, overbroad and vague, and lacked any accountability mechanisms. (He raised some other arguments as well, which all the judges rejected, and which I will not address here.)

***

Before getting there, however, he had to establish that the Charter was engaged at all. The Chief Justice thought that it was not, because “sharing information obtained under warrant for law enforcement purposes with foreign law officers does not violate s. 8,” [96] except in cases where the disclosure will used abusively (for example “for rendition to a foreign country … or public titillation” [95] or to enable torture or mistreatment).

Justice Moldaver, however, accepted that s. 8 of the Charter was engaged, despite the fact that the disclosure of an already-intercepted communication is not a “search” (as Mr. Wakeling claimed). In his view,

[t]he highly intrusive nature of electronic surveillance and the statutory limits on the disclosure of its fruits suggest a heightened reasonable expectation of privacy in the wiretap context. Once a lawful interception has taken place and the intercepted communications are in the possession of law enforcement, that expectation is diminished but not extinguished. [39]

The test for deciding whether the disclosure infringes s. 8, similar to the one applicable to a search, is

(1) whether the Impugned Disclosure was authorized by law; (2) whether the law authorizing the Impugned Disclosure is reasonable; and (3) whether the Impugned Disclosure was carried out in a reasonable manner. [42]

In this case, the first prong of the test was obviously satisfied, and the focus was almost entirely on the second.

Mr. Wakeling’s first arguement against the reasonableness of par. 193(2)(e) of the Criminal Code was that it was overbroad in authorizing “near-limitless” disclosures. Justice Moldaver rejected this claim because the Code “limits the type of information that may be disclosed, the purpose for which it may be disclosed, and the persons to whom it may be disclosed” [55]. He also rejected additional arguments concerning the scope of par. 193(2)(e) made by the BC Civil Liberties Association. To the latter’s claim that it was not reasonable to authorize disclosure in the interest of the administration of justice in a foreign state rather than in Canada, Justice Moldaver answered that Canada also benefits from international co-operation, which has to be reciprocal. To the assertion that authorizing disclosure for improper purposes, or with knowledge that it would be used to torture or otherwise abuse people, he replied that “the disclosing party must subjectively believe that disclosure will further the interests of justice in Canada and/or the foreign state. The belief must be an honest one, genuinely held” [59], a criterion that would probably not be met if the disclosing party does not know how the information disclosed would be used, and still less if it know that it will be used to commit human rights violations.

Mr. Wakeling’s next argument was that the requirement that disclosure to foreign authorities be for the purposes of “the administration of justice” is unconstitutionally vague. Not so, said Justice Moldaver. “Administration of justice,” he said, “means that disclosure must be for a legitimate law enforcement purpose,” and that’s precise enough to guide legal debate.

Finally, Mr. Wakeling contended that par. 193(2)(e) did not provide sufficient accountability mechanisms, whether notice to the target of the wiretap, record-keeping, reporting to Parliament, or mandatory imposition of conditions on the ways in which the recipients of disclosure would use the information in question (known as “caveats”). Justice Moldaver rejected these claims, on the basis that the existing accountability mechanisms are enough. Additional safeguards may be desirable and worth encouraging; their existence or application to a particular case may even be relevant to determining whether a given disclosure was authorized by law or reasonable; but they are not constitutionally required. Justice Moldaver seems to have been concerned about imposing, as a constitutional matter, excessively rigid rules in the area of foreign relations and co-operation between law enforcement agencies. He concluded this part of his reasons by

emphasizing that this Court’s task is not to determine whether there may be better or additional accountability measures or stricter language that could be put in place with respect to the cross-border disclosure of wiretap communications. Any attempt to micromanage Parliament in this context must be approached with great care. The task at hand is to determine whether s. 193(2)(e) passes constitutional muster. [77]

It is worth noting here that, although she did not formally reach this question because of her conclusion that s. 8 was not engaged at all, the Chief Justice opined that “[t]hese are difficult questions more redolent of policy than of law. Parliament has considered them and answered with the offence provisions and exemptions of s. 193,” [100] and suggested that Parliament’s choices deserve deference.

The final prong of the s. 8 test asks whether the disclosure at issue was itself carried out in a reasonable manner. There was no real dispute that this requirement was satisfied here. However, Justice Moldaver pointed out that in other cases, “[w]here a disclosing party knows or should have known that the information could be used in unfair trials, to facilitate discrimination or political intimidation, or to commit torture or other human rights violations” [80], the requirement that disclosure be carried out in a reasonable manner could entail the imposition of caveats or other precautionary measures ― or, in the more extreme case, may operate to prevent disclosure at all.

For her part, Justice Karakatsanis disagreed with Justice Moldaver on the matter of accountability requirements. She worried that “[w]hen information is shared across jurisdictional lines, the safeguards that apply in domestic investigations lose their force,” which “can create serious risks to individual privacy, liberty and security of the person interests.” [118] To mitigate these concerns, Justice Karakatsanis would have made mandatory the imposition of caveats that would

provide some assurance to our law enforcement agencies that disclosed information will only be used to advance legitimate law enforcement objectives, in accordance with respect for due process and human rights and will not be shared further except as agreed to by the disclosing party. [133]

Furthermore, Justice Karakatsanis would have required the implementation of some form of record-keeping and notice-giving mechanisms applicable specifically to cross-border disclosures. The fact that such mechanisms apply to the general fact of the interception of communications was not enough, in her view, because cross-border disclosure comes with its own set of privacy risks. However, Justice Karakatsanis did not specify the form that such mechanisms ought to take, leaving it to Parliament to figure this out.

Having found that par. 193(2)(e) is not a “reasonable” law and thus infringes s. 8 of the Charter, Justice Karakatsanis summarily rejected the possibility that it might be justified under s. 1, on the basis that it is minimally impairing, since alternatives more respectful of privacy interests are available to Parliament.

***

I do not have any particularly deep thoughts about the substance of the Supreme Court’s decision. (Craig Forcese does, mostly about what it means for Canada’s security services, and what Parliament should do to address the somewhat uncertain situation in which they now find themselves. Do read what he has to say.) I will, however, make a couple of observations.

The 1-3-3 split in Wakeling, following similar multi-way splits in cases such as R. v. TELUS Communications Co., 2013 SCC 16, [2013] 2 SCR 3, seems to indicate that s. 8 and privacy rights more broadly remain an area on which the Supreme Court, so inclined towards consensus on most topics, still cannot agree. Yet it is worth noting that the splits do not involve consistent “camps” that would suggest irreconcilable differences of views. Indeed, in Wakeling, Justices Moldaver and Karakatsanis go out of their way to acknowledge each other’s concerns ― to an extent remarkable even by the Court’s usually polite standards.

This, to me, seems to suggest that we are in an area of reasonable disagreement between people debating in good faith. And that, in turn, might mean that Justice Moldaver’s and the Chief Justice’s appeals for deference to Parliament are especially appropriate. At least insofar as Parliament considers the interests at stake and tries to strike a balance between them, judges should probably hesitate before upsetting this balance. This is all the more so if they have limited evidence about how cross-border information-sharing actually operates, which may well have been the case in Wakeling. That said, Parliament should not get the benefit of deference if it fails to study and debate the issues before it with some degree of care and honesty. Unfortunately, the legislative practices of the current government do not inspire much confidence on that front.

New Ideas and Old

Time to emerge from my holiday hibernation. And it seems fitting to start off the new year with some reflections, or at least a re-hash of some reflections, on the subject of social, technological, and legal change. The immediate occasion for doing so is a column by Washington Post’s Robert Samuelson on the widespread outrage provoked by revelations of the NSA’s data-collecting activities.

Mr. Samuelson argues that these revelations are commonly “stripped of their social, technological and historical context.” The context in question is the fact that “millions upon millions of Americans have consciously and, probably in most cases, eagerly surrendered much of their privacy by embracing the Internet and social media.” For people who disclose all sorts of information about their lives to strangers and to the social media companies to complain about the government collecting some limited kinds of information about them, subject to legal constraints, is “hypocritical.” Besides, the NSA’s activities are also not nearly as intrusive as past government programmes for spying on citizens: during the Vietnam War, “the CIA investigated 300,000 anti-war critics.” However questionable the need for or effectiveness of specific NSA programmes, Mr. Samuelson adds, “[i]n a digitized world, spying must be digitized.” In short, our views on privacy need to take the context of 2014 into account. Some of you may recall an early post of mine in which I discussed a paper by Chief Judge Alex Kozinski, of the US Court of Appeals for the 9th Circuit, arguing that privacy is pretty much dead, because courts treat as private the things that citizens expect to be private, and if citizens, through their online behaviour, demonstrate that they do not expect any information about them to be private, then the courts will act accordingly. Chief Judge Kozinski was worried by this possibility. Mr. Samuelson does not seem to be. Should we?

Mr. Samuelson is right to insist on context, both historical and social, before getting outraged. It is easy to forget that new technologies often do no more than give a new form to things which existed long before. As I suggested here, “[n]ew technologies seem not so much to create moral issues as to serve as a new canvass on which to apply our old concerns.” And there may well be something hypocritical in failing to care about disclosing all kinds of personal information to companies that (try to) make money out of it, yet being furious at governments using similar information to (try to) prevent terrorist attacks. What the NSA does is arguably not as big a deal as some of the outraged think. Yet that does not fully justify Mr. Samuelson’s unconcern. Both he and Chief Judge Kozinski forget that the end of privacy as we had known it need not, and arguably does not, mean the end of privacy tout court. Old norms about what is and what is not private are breaking down under the pressure of technological change. But that does not mean that new ones do not emerge.

In particular, the norm that seems to be replacing near-categorical prohibitions on using certain sorts of information is one that makes all sorts of personal information fair game subject to the consent of the person concerned. Attempts to prohibit email providers from “reading” the contents of our messages look silly considering the hundreds of millions of people who use Gmail knowing that Google does just that ― but the point is that they know what is going on. Similarly, people accept to share information on Facebook, so long as they know they are sharing it ― but they are unhappy when Facebook tries to expand the visibility of the things they shared without telling them. This example also hints another important norm in the new privacy universe ― one of differentiated, rather than categorical, privacy. The fact that we accept to share information with some people or organizations does not mean that we are willing to share it with others.

Arguably, these norms aren’t exactly new. For instance, we always shared some things with our friends that we kept from our parents, and told parents things we wouldn’t admit to our friends. Even before Facebook, few things were private in the sense of nobody knowing about them. But new technologies make the choices to tell and not to tell more pervasive, more nuanced, and more explicit than they perhaps had to be before. They also make the relativity of privacy more apparent.

The problem with the NSA data collection, as others have said before, is arguably not so much its substance as the lack of consent and awareness of those affected. That, rather than the collection of personal information as such, is what contravenes the key norms of the new privacy paradigm. And to the extent that the outrage about the NSA’s activities caused by this violation, it is not all hypocritical.

I’m not sure there is much of a point to these ramblings. I’m still trying to write my way into the new year.