Supreme Court is right to protect privacy of text messages

The Supreme Court of Canada acquitted an Ontario man convicted of trafficking handguns earlier this month. And as distasteful as that ruling may sound, it was the right decision. That’s because it upholds every citizens’ Charter rights against unreasonable search and seizure by recognizing that text messages, “in some cases,” deserve privacy protections.

In fact, the decision essentially means police must obtain a warrant to check for text messages in the same way they now must get one to listen to phone conversations.

It updates the law on Charter protections to take into account one of the most common forms of day-to-day communication.

As Justice Malcolm Rowe put it, the decision recognizes that “the broad and general right to be secure from unreasonable search and seizure is meant to keep pace with technological development.”

Indeed, texts are the “modern equivalent of the phone conversation,” said Ann Cavoukian of Ryerson University’s Privacy by Design Centre of Excellence. “Surely protections that extend to phone conversations should extend to texts. Privacy is all about personal control over information.”

The decision also recognized that texts are not just protected on the phone of the sender, but on the receiver’s device as well.

Indeed, Nour Marakah was convicted not on evidence that was found on his BlackBerry, but on texts he had sent to the iPhone of the recipient, Andrew Winchester.

The lower courts had found that while Marakah had a reasonable expectation to privacy of texts found on his own phone - which were ruled inadmissible as evidence - he could not have expected they would remain private at the other end.

In its 5-2 ruling, the Supreme Court disagreed. “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,” Chief Justice Beverley McLachlin explained. “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.”

Nor does requiring police to get a warrant before searching a phone for texts impose too high a bar. As Cavoukian argues, “It’s not that hard to get a warrant.”

In the end, the decision sensibly recognizes that Charter rights must be adapted to protect citizens in a changing world. That is the logical and right precedent to set.

“Privacy is all about personal control over information.”