The Supreme Court of Canada was right on Wednesday to recognize that text messaging is, in principle, not distinguishable from telephone conversations, and that the interception of those messages should be subject to the same legal conditions as the wiretapping of phones.
Telus Corp. deserves praise for standing up for the privacy of its customers. The dispute in this case was not a matter of criminal suspects or accused persons trying to suppress or exclude evidence.
Instead, it was Telus that applied to the Ontario Superior Court of Justice to set aside the sweeping general warrant that the police had obtained. In the court of first instance, the judge did not agree with the company, but Telus persisted and was successful in the court of last resort. It would have been easier and much less expensive to just go along with what the police wanted.
Moreover, this case would not have arisen if Telus did not provide its customers with a service that is by no means universal in this business; for a fairly short time – but at least 30 days – it maintains a backup of a customer’s text messages on a computer database. The purpose for this is to facilitate solutions to problems that customers may encounter in using the text-messaging service.
This extra convenience should not result in less privacy for the customers, but the police tried to get access not to specific, actual communications but, as the court put it, to “prospective production,” for which they wanted a broad warrant, a kind that should be granted only in exceptional circumstances.
In other words, the police wanted “future private communications on a continual, if not continuous basis over a sustained period of time,” as Justice Michael Moldaver put it in his concurring reasons.
Before the Superior Court decision, Telus had received only six such warrants. After that, the company got several hundred. The proverbial floodgates had opened, though such warrants had been designed to be rare.
Texting is very like spoken conversation on a telephone. Its informality gives rise to what the Supreme Court’s majority rightly called a reasonable expectation of privacy. It is good that the normal, rigorous standards for interception will apply.