On March 27, the Supreme Court of Canada held that the police must obtain a judicial wiretap order to get text message records from service providers, as opposed to a general warrant, which is easier to obtain.

In this case, the police obtained a general warrant requiring Telus, a national telecommunications company in Canada, to provide copies of the stored text messages of two of its subscribers. Telus applied to quash the general warrant, arguing that the acquisition of text messages from its database constitutes an interception of “private communications,” and therefore requires authorization under the wiretap authorization provisions of Part VI of Canada’s Criminal Code. After the lower court dismissed Telus’ application, the Supreme Court ruled 5-2 in striking down the general warrant, ruling that the police could not obtain the data without a more stringent court order that permitted the police to conduct wiretapping. The basis for the court’s ruling was that text messages are private communications and that restrictions should be in place for the police to obtain and disclose those messages. According to the majority:

“Text messaging is, in essence, an electronic conversation. Technical differences inherent in new technology should not determine the scope of protection afforded to private communications. The only practical difference between text messaging and traditional voice communications is the transmission process. This distinction should not take text messages outside the protection to which private communications are entitled under Part VI.”

In the United States, wiretapping and surveillance issues continue to appear before the U.S. Supreme Court and lower courts as well. See U.S. v. Jones and more recently, Clapper v. Amnesty International, which we previously analyzed. An underlying issue in all of these cases is how to apply long-standing constitutional schemes to new forms of communications. The U.S. Supreme Court seems hesitant to issue a broad ruling that would apply to all forms of electronic communications, perhaps, at least in part, because of the rapidly evolving nature of technology and communications. As courts across the nation (and in other countries) consider these issues, we’ll continue to follow these cases closely.