Supreme Court Hears Lawful Acquisition of Text-Based Communications Case

- 2012-10-15 -

Today, the Supreme Court of Canada will hear Telus Communications Company v. Her Majesty the Queen, SCC File No. 34252. The case will decide whether police will be permitted to bypass special privacy protections the Criminal Code provides against the interception of text messages. The argument is that because TELUS stores text messages passing through its system for the purpose of ensuring delivery, these messages are no longer 'in transit' and, hence, acquiring them is not an 'interception' and does not warrant the special Criminal Code protections in question.

In its intervention in this case, CIPPIC argues that courts should not let narrow interpretations of provisions defeat important protections offered to constitutional rights such as privacy. Such provisions should be interpreted in a flexible manner that accounts for evolutions in communications delivery mechanisms. Temporary storage is a natural feature of evolved communications mechanisms such as text messaging, Email, and other web-based interactions. Temporary storage of this nature, particularly when undertaken by communications intermediaries such as TELUS, is typically considered part and parcel of the communications process. Storage for the purpose of message delivery should, therefore, be considered part of the message delivery process. While this may not provide special protection for communications that is in storage and in control of the user (a voice message, for example, or archived email), it does provide protection for communications stored by communications companies solely as part of the delivery process.