[JURIST] The Supreme Court of Canada [official website] ruled Wednesday that police cannot use general search warrants to acquire text messages from a service provider’s database. In a 5-2 decision [judgment], the court found that text messages are private communications and cannot be intercepted by police without special wiretap authorization under Part VI [text] of the Criminal Code. Under the general warrant provision [text], a judge may only issue a warrant to a police officer if no other provision would provide for a warrant. The case centered on TELUS Communications Company [official website], which has an unusual routine of briefly storing electronic copies of text messages sent or received by its subscribers on its database. The court reasoned that if TELUS did not maintain a computer database, police would be required to obtain an authorization under Part VI to obtain prospective 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 technical differences inherent in Telus’ transmission of text messages should not deprive Telus subscribers of the protection of the Code that every other Canadian is entitled to.
The court’s decision applies to all text messages, including stored messages and prospective messages.
Rapid changes in technology have left legal questions about the extent of digital privacy protection. In December the US Court of Appeals for the Fifth Circuit ruled that data stored on personal cell phones is not protected by the Stored Communications Act (SCA) [text]. The US Senate Judiciary Committee in November approved a bill [JURIST report] that would prevent police from searching e-mails and other electronic content without a warrant. In August, a member of the the German Pirate Party filed an appeal with the European Court of Human Rights challenging [JURIST report] a German law that requires pre-paid cell phone purchasers to provide valid identification with each purchase.