While down here in America, cops can (and do) routinely and easily get text messages from a mobile provider, in the Great White North it’s a different story.
The Supreme Court of Canada, in a 5-2 decision on Wednesday, agreed that police need a warrant order to obtain live, real-time text messages from a mobile provider. A warrant order is an even higher standard than a general warrant, which the Canadian government argued was sufficient.
The case involves Telus, one of Canada’s largest mobile firms. As described in the decision, “unlike most telecommunications service providers, Telus routinely makes electronic copies of all the text messages sent or received by its subscribers and stores them on a computer database for a brief period of time.”
As the result of a criminal investigation in Owen Sound, Ontario (119 miles, or 190 kilometers, northwest of Toronto) local police obtained a general warrant as defined under sections 487.01 and 487.02 of the Canadian Criminal Code. They wanted copies of “any stored text messages sent or received by two Telus subscribers.” Telus, in defending its customers, applied to quash the warrant, “arguing that the prospective, daily acquisition of text messages from their computer database constitutes an interception of private communications and therefore requires authorization under the wiretap authorization provisions in Part VI of the Code.”
The Canadian government (“the Crown”), meanwhile, argued that a general warrant should be all that is necessary to acquire text messages under the Canadian Criminal Code. The Supreme Court, in its decision, sided with Telus, saying that indeed, police need a wiretap to obtain text messages in real-time, or near real-time.
“Text messaging is, in essence, an electronic conversation,” wrote Supreme Court Justice Rosalie Silberman Abella.
“Technical differences inherent in new technology should not determine the scope of protection afforded to private communications. 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 under Part VI.”
In the United States, courts have split on how cops can legally access text messages. In 2012, a Washington state appeals court ruled that cops could even take a seized mobile phone and send text messages, impersonating a suspect. But others have said that cops do need a warrant, as was the case in Rhode Island, where a superior court judge decided that a warrantless search of a suspect’s text messages was unconstitutional. California’s Supreme Court took the opposite view in 2011. The Supreme Court of the United States declined to take up a related case in 2010.
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