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Supreme Court of Canada Rules That Text Messages Are Private
An anonymous reader writes "The Supreme Court of Canada has ruled that text messages are private communication (Official Ruling) and therefore police are required to get a warrant to gain access to the text messages of private citizens. The CBC reports: '[Supreme Court Justice Rosalie Silberman] 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.'"
Quite different from the attitude in the U.S.
The only question now is how long before we can get the same protection for ALL forms of communication, regardless of the technology used.
My understanding is that this particular telco was storing the texts. It wasn't that the police were interested in intercepting the messages live, but rather they wanted their general warrant to let them have access to the copies of the messages.
The Court ruled that a wiretap warrant is required for the police to have access to the copies of the messages.
As as I am aware, this telco is the only major player storing texts.
If only we could fall into a woman's arms without falling into her hands
Comment removed based on user account deletion
The thing to remember is that the US is a much larger country. This is in terms of population. For that reason, there are likely to be more extremes in the US, just as a numerical property of a larger population.
(Not really a complete thought, just thinking on /.)
PS: I don't reply to ACs.
How can anyone be in favor of both warrantless spying and democratic form of government?
Those that are in favor are those in power or those that "think of the children" without actually pausing to consider what it means when those children become adults.
It seems many people would rather the government give the appearance of trying to stop the terrorist bogeyman than respect people's freedom and privacy.
Filthy, filthy copyrapists!
My understanding is that this particular telco was storing the texts.
According to the ruling, they stored the texts 'breifly'. It sounded like the police needed a daily capture of the data in order to get everything.
Its not like these were long term logs.
I would guess it was an implementation of the SMS queue where when you send a text that's undeliverable because the destination phone is unreachable it hold its it for a while to attempt to deliver it later. It probably just put all messages into the queue, marked delivered messages when they were delivered, and then purged them daily.
At least that's what it sounded like to me.
There are extreme circumstances where obtaining a warrant will take more time than you have, and in such cases, I don't oppose implementing a wire tap or intercepting communications to get the information needed, on two very important conditions: there is disclosure after the fact, and a warrant is subsequently obtained. The first speaks for itself, and for the second: If the warrant is not obtained for any reason, then any information gathered by this means can't be used in criminal proceedings. Given how much information can be gotten through such a tap, you'd better be absolutely certain that there is an urgent and immediate need to implement a tap, and that your evidence to justify it is adequate, otherwise you can throw your own case out by doing it.
It is still possible to have that form of warrantless information gathering while still having an open and democratic government, but you need to be open about the information gathering too, when it happens. What passes for democracy in the states is a far cry from how I actually envision it.
As always, TFS is incorrect. Reading THE FIRST PARAGRAPH of the linked decision will tell you that.
The police HAD a warrant. The court determined that a general warrant was not sufficient and that they required a specific WIRETAP warrant.
Actually, I think they bend over the other way when holding up their end... of the deal. [rimshot] Thank you. I'll be here all week.
Seriously, you are quite right. The U.S. telco's are totally complicit in the buggering of our civil rights. All save the late QWest, that is.
uh, he only went through your phone after he asked and you let him. you didn't have to waive your rights.
That's as may be, but it seems to me that the border, on both sides, is a kind of "no man's land", where the usual civil liberties don't apply. When US border agents have the authority to arbitrarily deny you admission to the US for years, it seems to me that refusing a "request" can be a high-risk game for the uninformed.
Simply put: why should the police have access to anything without a reason? are they better than us? do they know better? are they magical?
Nope they're just people like you and me.
Short or long term neither they, or you and I should have access to anybody else's non-public information without a compelling reason.
There are extreme circumstances where obtaining a warrant will take more time than you have
Too bad. Get a warrant.
Filthy, filthy copyrapists!
sure it has more meat, horse is less fatty than pig, i would imagine :)
The Supreme Court decision requires a wiretap authorization, which is harder to get than a warrant. A warrant was always required and no one was arguing that it wasn't. Telus, for whatever reason, stores its text messages for some time. In this case the cops wanted to access these stored text messages as they were coming in. To work around the more difficult requirements of a wiretap authorization, they used a general warrant on the grounds that this was saved correspondence, not live communication. The majority of the Court didn't buy that argument, saying that this went against the purpose of the wiretap provisions, which is to protect interactive communication. What's interesting is that the majority didn't get tied up in the specifics of how the messages were handled and went with this purposive analysis.
As it should be. However, telephone companies should not be archiving them, without permission from the client.
Canadian bacon isn't ham, it's the same pork belly and loin as American bacon. Ham is the leg, it's an entirely different part of the animal.
We have multiple kinds of bacon in Canada -- back bacon (which is the same as the British bacon you mention http://en.wikipedia.org/wiki/Back_bacon), Peameal bacon (http://en.wikipedia.org/wiki/Peameal_Bacon which is brined and rolled in pea meal), and plain old bacon.
Well, I guess we also have that mysterious bacon which doesn't need to be refrigerated, which I assume is an invention of the US food industry.
We know bacon, we just know more kinds than you do.
Lost at C:>. Found at C.
I wouldn't bother. I don't think there is a completely sane government left. You flee one set of crap, but the new country has another of it's very own issues. Some of the Scandinavian countries sound okay, but they have some questionable issues too.
Of course if you have money, most of those issues evaporate no matter where you are.
How many warrant requests - even in Canada - are not automatically rubberstamped by Judge Judy when handsome Constable John Law comes calling? Especially when there is no one arguing against the request or even know it's occuring.
It's the right ruling, but the effect will be depressingly miniscule.
He wasn't talking about a sane government, but a more sane country. Sure, every country (and government) has its issues, but the USA is so far gone that it's its own kind of insanity. You'd be forgiven for occasionally mistaking it for a third world country.
Telus has admitted that it stores text messages for '30 days' for diagnostic purposes... That's not "briefly", in my opinion.
Sad but true. Corporate money and power has ruined our already fat, lazy, and stupid country.
I got here through a series of tubes
Illegally obtained evidence can be ruled still admissible in Canadian courts. It's not automatic, the trial judge would have to rule on the admissibility on a case by case basis, depending on
1) the seriousness of the Charter-infringing conduct of the State
2) Impact of the Charter-Protected Interests of the Accused
3) Society's Interest in an Adjudication on the Merits
Basically, if the charge is serious and the cop can come up with a good reason for the breach, the evidence will probably go in. If the officer in charge basically just didn't care about your rights and dumped all over them, well then the Crown would have some trouble.
Rule of Slashdot #0: You and people like you are not representative of the larger population. - A.C.
Such a policy has a good chance of saving some lives over the years
I'd much prefer that a few lives be lost than allowing for random exceptions. As I keep saying, I'd be against the TSA even if it was actually effective.
Filthy, filthy copyrapists!
Just last month, the Ontario Appeals Court ruled that a cellphone that's not digitally locked (such as with a password) can be searched without a warrant... but if locked, a warrant is required.
http://yro.slashdot.org/story/13/02/21/1343231/cellphone-privacy-in-canada-encryption-triggers-need-for-warrant
Now the Canadian Supreme Court says that access to text messages requires a warrant. This is interesting because the Ontario case from last month involved text messages that were searched without a warrant.
http://arstechnica.com/tech-policy/2013/02/cops-can-search-mobile-phoneonly-if-its-not-password-protected/
I would assume that the Canadian Supreme Court ruling takes precedence over the Ontario Appeals Court ruling... for text messages. However, photos, video, chat logs, etc apparently don't get the same protection.
So... lock your phone with a password, no matter what... even if it's just a minimal one that's easy to type.
Getting tired of Slashdot... moving to Usenet comp.misc for a while.
It's "wiretap authorization". And more...
From the ruling:
The technique sought to be authorized here is not the substantive equivalent of a wiretap authorization. On the facts of this case, a wiretap authorization alone would not allow the police to obtain the information that Telus was required to provide under the general warrant. Three separate authorizations would be required in order to provide the police with the means to access the information provided to them under the general warrant. Therefore, even if one were to accept reading into s. 487.01(1)(c) a âoesubstantive equivalencyâ test, neither the facts nor the law would support its application in this case.
I.e. What they were asking for was not covered by a single type of warrant. They would need three different authorizations for all that.
The conditions for issuing a production order are similar to those for a search warrant. The issuing justice or judge must be satisfied by information on oath that an offence has been or is suspected to have been committed, the documents or data will afford evidence respecting the commission of the offence and that the person to whom the order is directed has possession or control of the documents or data (s. 487.012(3)). In addition, the person to whom the order is directed cannot be a person under investigation (s. 487.012(1)).
unlike search warrants and production orders that may be issued by judges or justices of the peace, general warrants may only be issued by judges (s. 487.01(1)). Second, âoethe judge [must be] satisfied that it is in the best interests of the administration of justice to issue the warrantâ (s. 487.01(1)(b)). Third, a general warrant must âoecontain such terms and conditions as the judge considers advisable to ensure that the search or seizure authorized by the warrant is reasonable in the circumstancesâ (s. 487.01(3)). Fourth, a general warrant may be issued only if âoethere is no other provision . . . that would provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be doneâ (s. 487.01(1)(c)). In other words, a general warrant may not be used to authorize a âoetechnique, procedure or device to be used or . . . thing to be doneâ if there are other provisions in the Code (or elsewhere) that could authorize it.
An authorization to intercept private communications under Part VI of the Code allows police to receive messages as they are being sent or received by subscribers. These sorts of authorizations are subject to even more strict conditions than those which apply to general warrants. They may only be issued by a judge of a superior court of criminal jurisdiction. The Attorney General, the Minister of Public Safety and Emergency Preparedness or a specially designated agent must bring the application (s. 185(1)). There are specific and detailed provisions relating to what must be placed before the judge. The issuing judge must be satisfied not only that it would be in the best interests of the administration of justice to issue the authorization but also that the so-called âoeinvestigative necessityâ test has been met (s. 186(1)). This means that the judge must be satisfied that âoeother investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative proceduresâ (s. 186(1)). The authorization may generally not be valid for more that 60 days (s. 186(4)(e)) and there are notice and reporting requirements (s. 196).
In short, they'd need to "rubberstamp" the Attorney General or the Minister of Public Safety and Emergency Preparedness.
Mit der Dummheit kämpfen Götter selbst vergebens
False. In Toronto, I've had bacon & bacon (with cheese!) on a kaiser. Yes, that's right... Canadian bacon topped with regular bacon (and cheese!). Even better, the same place had ham & bacon & bacon sandwiches too.
Canadians (except the Jewish or Muslim varieties) love them some pork.
Getting tired of Slashdot... moving to Usenet comp.misc for a while.
No shit it's a slippery slope. The whole thing is a slippery slope which is why you have to objectively say "no" right out of the gate. There are already a special set of rules for life threatening situations. The police don't need a warrant to enter your house if you're holding a gun to someone's head. The don't need a warrant to arrest you if you're waving a gun around in public. Those are separate issues than spying on someone and if a threat is really imminent enough that you need to illegally tap a phone to save a life, you're kind of already too late. Make the police do the job they were hired to do like everyone else. No cutting corners. Period.
I got here through a series of tubes
I think the correct response in this situation is that the police break the law, save the girls life, then go to jail with a clear conscience. If it is important enough to not require a warrant then it should also be important enough to accept the consequences of not having a warrant.
But once you give special exemptions that don't require warrants, law enforcement agencies will continue to expand that loop hole until it encompasses anything they want.
It was. That's what the court determined.
Thing is, the law didn't talk about "text messages" it talked about communication. text messages didn't exist when the law was written. What the court ruled is that just because the tech didn't exist, doesn't mean that it isn't covered.
Courts don't write laws. they interpret them. This time they interpreted what the original law "would have said" had it been written in an age where text messaging existed.
We don't need a new law for every new piece of technology that comes along. What we need is laws that give the general outline, and courts that realize what the intent was originally and rule within it. "on a phone" or "on a computer" doesn't change what you're doing, it only changes how it is done, rule based on what was done, not how.
The same court also ruled recently that Police need a warrant to search through your phone if it's password protected, but not if it is not, basically making it akin to your physical papers where they'd need a warrant to look through them if they were locked in a safe, but not if you left them lying on the desk and they were otherwise entitled to look at the desk.
At the moment I'm relatively happy with our supreme court... (and I'd like to give some credit to TELUS on this one, as it was TELUS who challenged the general warrant in this case and pushed for the wiretap order instead. good on them holding the government to account.)
Dear AC, if you think term limits for presidents "completely unravels" an argument that a country is fascist, you're out of your gourd.
As for checks and balances, see http://en.wikipedia.org/wiki/Iron_triangle_(US_politics) and http://en.wikipedia.org/wiki/Tactical_voting - real life is not as simple as you'd like it to be.
Free elections and a capitalistic economy do not guarantee a non-fascist democracy if the outcome is predetermined. Sort of analogous to an ocean with big undercurrents on a calm day. You wanted to swim that way? Swim all you like, you're going another way, and if there's not enough reference points you don't even realise it, let alone why.
And is the US fascist? I think... no. Not yet. But it's generally the mark of the insane to just close your eyes and recite 'la la la I can't hear you' when anyone dares point out any cracks in the brickwork.