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, 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. 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.

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.