Do police need wiretap authority to obtain texts?

The Supreme Court of Canada will determine for the first time how the privacy provisions of the Criminal Code should apply when the state is seeking to obtain text messages as part of a criminal investigation.

A hearing scheduled for Oct. 15 will determine if the billions of text messages sent by Canadian wireless customers each year are private communications and if a search warrant or production order is necessary or, alternatively, whether police must obtain a more rigorous intercept authorization under Part VI of the code.

As well, the case seeks guidance on whether there’s a difference between texts already sent and stored and a prospective request for a communications provider to turn over messages not yet sent by one of its customers.

The case of R. v. Telus Communications Co. could have significant implications for service providers and the criminal courts as police are increasingly seeking to obtain the texts, e-mails, and computer chat records of accused people in hopes of finding self-incriminating statements.

Telus, which obtained leave directly from the Ontario Superior Court, is arguing that any seizure of private text messages from a service provider requires a Part VI wiretap authorization.

“The intrusion on a person’s privacy is identical whether the police surreptitiously listen in to your conversations while they are occurring or surreptitiously read copies of your private communications that are obtained directly from the means required for delivery of the communication,” argue Telus lawyers Scott Hutchison and Brian Gover of Stockwoods LLP in written arguments filed with the Supreme Court.

In response, federal lawyers Croft Michaelson and Lisa Mathews characterize the Telus arguments as “straining the language of the statute to encompass the production of a stored record of a communication from the ‘means of communication’” in their written submissions.

Telus is appealing a March 2011 decision by Ontario Superior Court Justice John Sproat. He upheld a general warrant issued by fellow Superior Court Justice Robert Thompson that ordered Telus to turn over all text communications by two of the company’s customers over an upcoming two-week period to police in Owen Sound, Ont.

As a result, Telus had to e-mail police a copy of all of the previous day’s texts of the customers by 2 p.m. each day. The company legally stores a copy of all of its customers’ texts for 30 days for troubleshooting purposes, the court heard.

Sproat concluded that a wiretap authorization wasn’t necessary because the dictionary definition of the word intercept suggests there must be a real-time capture of communication.

The Canadian Oxford dictionary defines intercept as to “seize, catch or stop (a person, message, vehicle, ball, puck, etc.) from going to one place to another,” noted Sproat in Telus.

The wiretap sections in the code date back to 1974, a time when “telecommunications by anything besides voice line was exceedingly rare,” according to Telus. As a result, the courts must apply a “purposive” approach to interpreting what intercept means under new technologies.

Given that Telus automatically makes a copy of all texts, “the state should not be permitted to take advantage of the processes of a common carrier of a communication to effect that interception and avoid the application of Part VI by maintaining that they are only requiring production of ‘stored’ copies of such communications,” wrote Hutchison and Gover.

The Canadian Civil Liberties Association, which has intervener status in the case, supports the position adopted by Telus. It’s the statutory definition of intercept that should apply, says Wendy Matheson of Torys LLP. She’s acting for the CCLA in the Telus case.

The code defines intercept as “to listen to, record or acquire a communication,” something that doesn’t necessarily require it to be contemporaneous, wrote Matheson in her submission. “Acquiring texts from the communications conduit, i.e. the telecommunications service provider, is an interception,” she stated.

The federal Crown, supported by the Ontario Ministry of the Attorney General, warns of the impact on law enforcement if the court accepts Telus’ position. “The provincial superior courts would be inundated with thousands of wiretap applications each year, simply to gather stored information,” wrote Michaelson and Mathews.

“The presence of a high expectation of privacy does not mandate the application of the wiretapping regime to every seizure of private communications,” the Crown argues.

In its appeal, Telus argues that a warrant, rather than a Part VI authorization, is all that’s necessary when police seize a mobile phone or a computer directly from an individual because the acquisition isn’t “surreptitiously done” as it is when a service provider has to turn over the communications.

The issue of what police can do when seizing a mobile phone from someone they’ve arrested was squarely before the Ontario Court of Appeal on Sept. 7. The court has reserved its decision in R. v. Fearon. The provincial Crown argued in that case that the court should permit a cursory search without a warrant.

In one of the few Ontario Superior Court cases to date to rule on these issues, Justice Ian Nordheimer concluded earlier this year that a standard warrant was all that was necessary to obtain stored text messages from an individual.

Part VI would apply if police seized the messages during transmission, said Nordheimer in R. v. S.M. The judge added that a warrant would generally be necessary to search a phone seized at the time of an arrest.    

For more, see "Courts divided on cellphone searches."

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