The Supreme Court of Canada issued its long-awaited decisions in R v Marakah, 2017 SCC 59 and R v Jones, 2017 SCC 60 today, issuing a strong statement on the protection of privacy in digital contexts. The decision held that text messages continue to enjoy constitutional protection even after they are received by their intended recipient, meaning the state cannot bypass constitutional protections simply by directing its search to the recipient's cell phone, social media account or service provider. As CIPPIC argued in its interventions [Marakah, Jones], the decisions being appealed adopted a formalistic approach to concepts such as 'control' and 'access' which apply robustly in the physical world (who controls the data at the time of access, from what location is the data accessed) but have minimal bearing on privacy expectations in digital spaces. By contrast, the majority of the Supreme Court adopted a broad analysis of the privacy interests at stake, with outgoing Chief Justice Beverley McLachlin emphasizing the choice of a private conversation medium (i.e. text messaging) as driving the privacy analysis, concluding that "... privacy in electronic conversations is worthy of constitutional protection. That protection should not be lightly denied." Indeed, as McLachlin, CJ, explains on behalf of the majority in Marakah, the choice of a private messaging medium is, in and of itself, an exercise of effective control, underpinning privacy expectations in electronic messages that extend to their recipient. The choice to engage in a private electronic conversation creates a context where the sender can reasonably expect the messages to remain secure against the eyes of the state.
Image Credit: Matt Karp, CC-BY-NC-ND 2.0, May 7, 2010, Flickr