The Supreme Court of Canada recently released two decisions that develop the law on when individuals have a “reasonable expectation of privacy” in electronic devices and the communications on those devices.
In particular, these decisions provide insight as to when an individual can expect his or her text messages to be private – even when they are located on a recipient’s phone or on a telecommunications service provider’s server.
The two decisions, R v Marakah, 2017 SCC 59, and R v Jones, 2017 SCC 60, both dealt with the seizure of text messages in the context of criminal investigations. In Marakah, the police used incriminating text messages from a recipient’s phone to convict the sender of the messages of multiple firearms offences. In Jones, the police used incriminating text messages from a telecommunications service provider’s server to convict the sender of the messages of multiple firearms and drug trafficking offences.
In both decisions, the Supreme Court of Canada confirmed that subject to the relevant circumstances, individuals can have a reasonable expectation of privacy in text messages, even when the messages have already been sent.
These two decisions build upon earlier decisions by the Supreme Court of Canada with respect to the privacy expectations of individuals in electronic devices and communications including, among others, R v Spencer, 2014 SCC 43, and R v Cole, 2012 SCC 53.
In doing so, the decisions confirmed that whether individuals have a “reasonable expectation of privacy” in electronic devices and communications depends on the “totality of circumstances”.
The following factors are relevant to making this determination in the context of text messages:
- Whether the individual has a direct interest in the subject matter of the message;
- Whether the individual has a subjective expectation of privacy in that subject matter; and
- Whether the individual’s subjective expectation of privacy is objectively reasonable, including a consideration of the location of the text message, the private nature of the subject matter and control over the subject matter.
These factors are all taken into account to make a determination of whether an individual has a reasonable expectation of privacy in a particular text message. As such, the determination is fact-specific and must be made on a case-by-case basis.
As a final note, although the decisions in Marakah and Jones considered a criminal context, their findings are likely to be interpreted and applied more broadly in the future – including in other contexts and to other types of communications.
As such, these decisions are a reminder to those that may need to search or monitor the electronic communications of others (including law enforcement, telecommunications service providers, employers, schools, and others) to ensure that such searches appropriately take into account the privacy interests of individuals in those communications. Organizations are well advised to seek experienced legal counsel to ensure that relevant search and monitoring practices are appropriately developed and implemented.