Consent Searches for Electronic Text Communications: Escaping the Zero-Sum Trap
27 Pages Posted: 29 May 2018 Last revised: 27 Sep 2018
Date Written: May 8, 2018
Abstract
In R v Marakah, a majority of the Supreme Court of Canada decided that senders of electronic text communications maintain a reasonable expectation of privacy over their messages even after they are copied to recipients’ devices. The dissenters argued, in contrast, that any such expectation is objectively unreasonable given senders’ inability to control the messages after delivery. The Court did not settle the question, however, of whether this expectation can be defeated by a recipient’s voluntary decision to allow police to search his or her own device. Each side intimated that such a consent would be difficult, if not impossible, to obtain. This is unfortunate. Consent doctrine has the potential to bridge the gap between the two sides and achieve a better accommodation between communications privacy and crime control. I argue, nonetheless, that courts can and should use consent doctrine to avoid the “zero-sum” model of section 8 adjudication that characterizes the majority and dissenting reasons in Marakah. Properly interpreted, that doctrine preserves Marakah’s core holding—that senders do not reasonably expect unfettered state access to their received text communications—while also giving effect to recipients’ autonomous decisions to assist police. However, as with oral communications, a recipient’s consent to disclose a sender’s text communications to police should only defeat the sender’s expectation of privacy over preexisting messages. Contrary to several lower court decisions, I argue that the acquisition of future, incoming communications from recipients’ devices (with or without consent) invades senders’ reasonable expectations of privacy under section 8 of the Charter and constitutes an “interception” requiring judicial authorization under section 184.2 of the Criminal Code.
Keywords: search and seizure, charter of rights, section 8, consent searches, digital, text messages, communications surveillance
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