Consumer Privacy and Text Messaging: the Supreme Court of Canada Sides with Canadian Charter Values

In recent years, with the rapidly evolving communication technologies such as short messaging services (SMS) found on smart phones, and with very little or no clear guidance from a higher Courts as to how these technologies are to be treated under the law, it has been common practice for telecommunication companies to disclose personal and sensitive information relating to their customers to law enforcement authorities without going through the Courts.  From a privacy perspective, not only did these practices fail to comply with Canadian privacy law, but the consequences of inappropriate disclosure were potentially highly damaging to the consumer to whom the information related, as well as to the employees and the company who were disclosing this information with little to no concern.

The Supreme Court of Canada issued an important decision in R. v. Telus that sheds some light into how telecommunication companies should deal with the personal and sensitive information held by the customers as it relates to data being transmitted through mobile devices.  The decision should serve as important guidance to consumers, as well as anyone working in the telecommunication industry.  The conclusion of the Supreme Court of Canada is straight forward.  Consumers have an expectation of privacy in their text messages.  Their personal and sensitive information cannot be disclosed without their consent, or without following proper procedure, as set out under the law.

The facts of the case are straight forward. In this decision, the police had obtained a general search warrant under ss. 487.01 and 487.02 of the Canadian Criminal Code.  General search warrants offer less privacy protection to individuals as they are subjected to a less rigorous analysis by the Courts who issue them.  They are opposed to specific search warrants, such as those for wiretapping contained under part VI of the Criminal Code.  General warrants can only be obtained when the information being sought cannot be obtained under a more specific warrant under the Criminal Code.  In this decision, Telus argued that they were not obliged to respond to a general search warrant from the police, and that a specific warrant under the wiretapping provision had to be obtained by the police in order for them to disclose any information about their customers.  The opposing Appellant, on the other hand, held that a general warrant was sufficient to have Telus disclose information held in its database.

In this decision, the Court duly noted Telus’ practice of copying and storing all text messages sent from its consumers on a database for a period of thirty days.  Critical to the Courts’ decision was whether requesting text messages held on this database could effectively be considered as an “intercept of a private communication” as opposed to a disclosure.  The issue was seen as a question of the proper interpretation to give to wiretap warrants under part VI of the Canadian Criminal Code.  A broad interpretation would signify that requesting text messages stored on a database was an interception of a private communication. Conversely, a narrow interpretation of part VI wiretap  would mean that requesting text messages from a database was not an interception but rather a disclosure of personal information, in which case the less stringent and protective measures under s. 487.01 and 487.02 were sufficient to compel Telus to disclose personal information on its consumers.

Supreme Court of Canada Justices LeBel, Fish and Abella held that the overall purpose of part VI of the Canadian Criminal Code is to restrict the ability of authorities to obtain and disclose private communications. Interestingly, it found that text messaging is, in essence, an electronic conversation, and that technical differences inherent in new technology should not determine the scope of protection afforded to private communication.  As the Court rightly pointed out, the only practical difference between text messaging and traditional voice communication is the transmission process. According to the Supreme Court, however, this distinction should not take text messages outside the protection to which private communications are entitled under Part VI of the Criminal Code. For that reason, Telus was right to refuse to disclose personal information it held on its database when presented with a general search warrant from the police.

In short, the Supreme Court of Canada seems to have recognized the public’s concern over the state of their privacy in an interconnected, global information economy. The concern of the highest Court in Canada to protect Canadian values was reflected in its broad interpretation of  the words “intercept of a private communication”, and its refusal to analyse these words with any greater concern for how text messages are actually transmitted, as did the dissent who affirmed that the fact that the text messages were stored on a database qualified the facts of the case as a disclosure rather than an intercept. In light of the increasing sophistication and power of modern technologies, the decision by the most powerful Court in the country to back consumer privacy was the right decision.

Smit LeSieur is a Toronto based business law practice. Its founder, Francois LeSieur, specializes in the areas of privacy and data protection, cybersecurity, Internet and e-commerce, and business law for start-ups. http://www.smitlesieur.com | info@smlesieur.com