Wiretap order needed to seize text messages, court rules

Police need a wiretap order to seize text messages from your wireless provider, Canada's highest court has ruled.

"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," wrote Supreme Court Justice Rosalie Silberman Abella in the reasons for the judgment, which was supported by two judges.

Two other judges agreed in part and in the result, while two remaining judges dissented.

The decision overturns a lower court ruling against Telus Communications that required the company to hand over copies of two of its customers' text messages after it was served with a general warrant by police in Owen Sound, Ont.

Telus had appealed the ruling. The phone provider argued that seizing the messages would constitute "interception" of the communication and would therefore require a wiretap warrant. That is more difficult to get than a general warrant, because of special privacy provisions in the Criminal Code protecting private communications.

Private communications

Abella said 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," she wrote.

Justice Thomas Albert Cromwell, one of the two dissenting judges, wrote that while there is "no doubt" that text messages are private communications, his conclusion was that the investigative technique in this case was not an interception of private communications. Therefore a general warrant, rather than a wiretap order, was the appropriate authorization.

That's because the copies of the text messages that police wanted to obtain from Telus were not the copies sent and delivered by Telus customers, but copies kept in a database by Telus for 30 days for "troubleshooting purposes."

"The general warrant did not require Telus to intercept communications, but to provide copies of communications that it had previously intercepted for its own lawful purposes," Cromwell wrote.

Other providers don't keep texts

A general warrant cannot be used except when police show that no other provision of the Criminal Code, such as those pertaining to wiretaps, or any other legislation would allow them to use a given investigative technique. The two judges who partly supported the judgment agreed that the investigative technique that police were using in this case was "subtantively equivalent to an intercept" and therefore a general warrant couldn't be used.

Abella also noted that most wireless providers other than Telus do not keep a database with copies of their customers' text messages. Therefore, police targeting text messages from customers of other wireless providers would need a wiretap authorization.

"This creates a manifest unfairness to individuals who are unlikely to realize that their choice of telecommunications service provider can dramatically affect their privacy," Abella wrote.

The case began when Owen Sound police obtained a warrant in March 2010 ordering Telus to provide from its database copies of all the text messages sent by or addressed to two of its subscribers during the first two weeks of April that year. The messages would be handed over to police daily and might therefore include messages that the users themselves had not necessarily received.

An Ontario Superior Court judge ruled against Telus in 2011. It agreed with Crown lawyers that handing the messages over to police did not constitute "interception," because the copies of the text messages being handed over to police were not intended to be transmitted and were not created and stored for a purpose related to transmitting the messages.

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