The Supreme Court decided yesterday that police are required to comply with Part VI of the Criminal Code if they want to secure the prospective and continuous production of text messages from a mobile carrier like TELUS. In R. v. TELUS Communications Co., 2013 SCC 16, the Court ruled that police cannot merely obtain a general warrant. Rather to obtain copies of text messages in these circumstances, they must obtain an intercept order and comply with the conditions needed to intercept voice communications.
Criminal lawyers will undoubtedly find the three sets of opinions rendered in the case fascinating reading. IP/IT lawyers concerned with how courts approach complex digital issues will more likely be interested in the reasons of Abella J., with whom LeBel and Fish JJ. agreed, in interpreting the term “intercept” in s. 183 of the Code. That word is given a non-exhaustive definition that includes “listen to, record or acquire a communication or acquire the substance, meaning or purport thereof”.
In the recent copyright cases, Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35 and Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34, the Court applied the principle of technological neutrality to help come to the conclusion that on-demand streams are covered by the right to communicate a work to the public, while a download of a video game or musical work is not a communication to the public.
In the TELUS Communications case, Abella J., observed that Canadians have a reasonable expectation of privacy in their voice communications not being intercepted without compliance with the due process provisions of part Vi of the Code. In her view, text messages are similar to voice messages and should be treated in a like manner under the Code. Further, unlike Bell or Rogers, TELUS stores every text message before delivery to a customer. It was accepted that the police would have had to comply with the wiretap provision of the Code to obtain copies of these messages from Rogers or Bell. However, a narrow interpretation of the term intercept would have made those provisions inapplicable to TELUS customers. In Abella J.’s view the specific means of telecommunication used by TELUS should not be a determining factor in determining whether a communication has been intercepted. Rather, the Code should be construed in a technological neutral manner to achieve comparable results in both cases.
The application of the technological neutrality principle is evident in the following passages from Abella J`s opinion:
The focus of this appeal therefore turns on the interpretation of “intercept” within Part VI. “Intercept” is used throughout Part VI with reference to the intercept of private communications. This means that in interpreting “intercept a private communication”, we must consider the broad scope of Part VI and its application across a number of technological platforms, as well as its objective of protecting individual privacy interests in communications by imposing particularly rigorous safeguards. The interpretation should not be dictated by the technology used to transmit such communications, like the computer used in this case, but by what was intended to be protected under Part VI.
Text messaging is, in essence, an electronic conversation. The only practical difference between text messaging and the traditional voice communications is the transmission process. This distinction should not take text messages outside the protection of private communications to which they are entitled in Part VI. Technical differences inherent in new technology should not determine the scope of protection afforded to private communications..
In my view, text messages are private communications and, even if they are stored on a service provider’s computer, their prospective production requires authorization under Part VI of the Code.
If Telus did not maintain its computer database, there is no doubt that the police would be required to obtain an authorization under Part VI to secure the prospective, and in this case continuous, production of text messages. In fact, most service providers do not routinely copy text messages to a computer database as part of their transmission service. Accordingly, if the police wanted to target an individual who used a different service provider, they would have no option but to obtain wiretap authorizations under Part VI to compel the prospective and continuous production of their text messages. This creates a manifest unfairness to individuals who are unlikely to realize that their choice of telecommunications service provider can dramatically affect their privacy…
The issue then is how to define “intercept” in Part VI. The interpretation should be informed not only by the purposes of Part VI, but also by the rights enshrined in s. 8 of the Charter, which in turn must remain aligned with technological developments. In R. v. Wong, 1990 CanLII 56 (SCC),  3 S.C.R. 36, this Court found that “the broad and general right to be secure from unreasonable search and seizure guaranteed by s. 8 [of the Charter] is meant to keep pace with technological development, and, accordingly, to ensure that we are ever protected against unauthorized intrusions upon our privacy by the agents of the state, whatever technical form the means of invasion may take” (p. 44). A technical approach to “intercept” would essentially render Part VI irrelevant to the protection of the right to privacy in new, electronic and text-based communications technologies, which generate and store copies of private communications as part of the transmission process….
The reality of modern communication technologies is that electronic private communications, such as text messages, are often simultaneously in transitand in some form of computer storage by the service provider. As a result, the same private communication exists in more than one place and may therefore be acquired by the state from the transmission stream and from computer storage. In other words, the same private communication may be “intercepted” by police more than once from different sources.
When Telus copies messages to its computer database, several steps in the transmission process have yet to occur. The production schedule required by the general warrant in this case means that the police likely obtained stored copies of some text messages before they were even received by the intended recipient. Had the police acquired the same private communications directly from the transmission stream, instead of from the stored copies, the Crown concedes that a Part VI authorization would be required. The level of protection should not depend on whether the state acquires a copy of the private communication that is being transmitted or a copy that is in storage by a service provider as part of the communications process. Parliament drafted Part VI broadly to ensure that private communications were protected across a number of technological platforms (see Lyons).
The communication process used by a third-party service provider should not defeat Parliament’s intended protection for private communications. As the interveners Canadian Civil Liberties Association and Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic point out in their factums, this Court has recognized in other contexts that telecommunications service providers act merely as a third-party “conduit” for the transmission of private communications and ought to be able to provide services without having a legal effect on the nature (or, in this case, the protection) of these communications (Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45 (CanLII), 2004 SCC 45,  2 S.C.R. 427, at paras. 100-101).