In the 1970s the Canadian parliament put comprehensive provisions on intercepts into the Criminal Code that gave heightened privacy protections when police were applying for a wiretap. On Monday October 15, the Canadian Civil Liberties Association presented arguments before the Supreme Court of Canada to ensure that these privacy protections remain meaningful in an era dominated by cell phones and text messaging.
Over the past few years Telus, the cell phone provider, has received tens of thousands of search warrants, production orders and interception authorizations from police requiring them to hand over customer information and communications. Usually, warrants and production orders require cell phone providers to produce past communications, and interception orders allow for real-time surveillance. In March 2010, however, the police served Telus with a General Warrant and Assistance Order requiring the company to produce all text messages to and from a specific customer over the next 14 days. The police argued that, because Telus stored text messages for 30 days, this was not a wiretap. In practice, however, this type of warrant would give police daily, surreptitious access to all private messages, at times allowing law enforcement to read messages before the that had been received or read by the intended recipient.
The CCLA argued that text messages that are surreptitiously obtained from a cell phone service provider in the midst of the transmission process must be subject to the protections offered to wiretaps in the Criminal Code. As outlined in our Supreme Court arguments, from the standpoint of ordinary Canadians, the key questions and answers in this case seem obvious. Is texting like an oral phone conversation? Yes. If the police obtain your texts from the telephone company who transmits them, is that the same as listening in on your conversation? Yes. Is your expectation of privacy the same? Yes. Should the protection of your privacy be the same? Yes. We hope that the Supreme Court agrees.
To read CCLA’s factum click here.