LEGAL REPORT/Forensics & criminal law
Trying to keep up
Courts are battling to stay on top of the intermingling of privacy rights, changing
and emerging technology, and the search and seizure powers of the state.
O
ne day after the Supreme Court of Canada
ruled that text messages
are private communications, the intermingling of privacy rights, technology, and
the search and seizure powers of the
state was again before the court. This
time, the judges were asked to clarify
whether a computer is analogous to a
filing cabinet — one with a potentially
vast amount of storage space, but a filing cabinet nonetheless. The Supreme
Court decision issued March 27 in a
successful appeal filed by TELUS Communications Co. and the hearing the
next day in a suspected marijuana grow
operation in Langley, B.C., highlighted
the need for some direction to the lower
courts on these issues.
At a time when the use of portable
communication devices is ubiquitous
and the consumer is looking ahead to
"reality glasses," courts are still faced with
arguments comparing smart phones to
containers and a statutory scheme drawn
up when phones needed to be dialled.
The disconnect between the courts, the
legal profession, and technology in the
everyday world may also be a function
of age. As recently as three years ago, the
United States Supreme Court referred to
pagers as a new technology and some of
the judges had difficulty understanding
the role of service providers in transmitting texts and similar forms of communication.
As a result, "courts are nervous" when
confronted with these issues, suggests
Hanni Fakhoury, a lawyer with the Electronic Frontier Foundation, a San Francisco-based privacy rights group. "The
technology has advanced faster than the
people making the law and those interpreting the law," he says, noting the 2012
Supreme Court of the United States ruling in U.S. v. Jones concluded a warrant
was required to affix a GPS tracking device to a drug suspect's vehicle — based
on 17th century trespass law.
The lack of technological savvy and a
reluctance among appellate courts to interpret how to apply the existing schemes
in the face of rapidly changing technologies has led to conflicting decisions at
the trial level in both countries. In Telus,
the Supreme Court of Canada appears
to have gone beyond broad statements
about technology and privacy rights
and instead issued a ruling that provides
more clarity for law enforcement and
the public, in at least one area of communication. "The Supreme Court has
recognized the importance of privacy
interests in a new technology," says Wendy Matheson, a partner at Torys LLP in
Toronto who represented the Canadian
Civil Liberties Association in Telus.
The issues in the case stemmed from
a request in the spring of 2010 by police in Owen Sound, Ont., to obtain
the prospective text messages of two
individuals for a two-week period. Police obtained a general warrant, which
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2013
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mick couias
By Shannon Kari
