Privacy and Police Powers: Situating the Reasonable Expectation of Privacy Test

Abstract

Ever since King George III instructed his agents to break into John Wilke's house in 1763 because Wilkes had made a speech that criticized the Crown, the criminal justice system has sought to constrain the state's power to invade the privacy of its citizens. The framers of the American constitution responded by drafting the 4th amendment to protect citizens like Wilkes from unreasonable search and seizure (Rosen, cited in McDougall 1999: 9). North of the border, Canadian courts used the common law to develop similar protections until 1982, when the right to be free from unreasonable search and seizure was constitutionalized in section 8 of the Canadian Charter of Rights and Freedoms. Clearly, the balance between police powers and privacy is an old and established one. Why then is privacy so beset now, at the beginning of the new millennium? At least part of the answer can be found in the fact that our private lives are becomingly increasingly digitized, and that in turn has made it easier for the police to place people under surveillance. Traditionally, a police officer had to prove and probable grounds that a crime had occurred before a warrant could be obtained to search or seize property or intercept private communications (Fontana and Keeshan 2007). But now that people talk, work, shop, and play in networked spaces, they leave digital footprints for all to see, including the state. For example, photographs of a university party posted on Facebook can easily become part of a police investigation into underage drinking (Wikipedia 2007) because the police now have access to pictures that, only five years ago, would have remained closeted in a real-world photo album. Companies in the private sector routinely collect and sell clickstream and other online data for marketing purposes. Adzone, for one, repackages such data for police officers and national security organizations, who in turn use them to identify potential criminals (Adzone 2007). Indeed, in a world where school shooters post video threats on YouTube before killing classmates (Oates 2007), webcams broadcast the activities of pedestrians on the streets of major cities (Google 2007), tourists are required to provide digital fingerprints to pass through customs (Reynolds 2007), and police troll chat rooms for suspected terrorists (Austin and Johnston 2006), the pool of data available for criminal investigation has never been greater. But the state's access to this pool of information is obtained at a cost. From a liberal perspective, warrantless police searches violate our basic civil liberties and threaten democratic governance. The liberal principles that lie at the heart of the criminal justice system assume that the overwhelming power of the state must be constrained in order to ensure that the citizen enjoys a sphere of autonomous action. Allowing the police to place people under surveillance without any judicial oversight, the argument goes, inverts the basic principle that the state must be accountable to the citizen, and instead makes the citizen transparent to the state. Invasive powers are also attacked by critical scholars who argue that the marginalized--racialized people, religious minorities, and aboriginals, for example--are the first to lose their privacy to new forms of surveillance and control. For their part, the criminal courts have struggled to articulate an appropriate balance between privacy and police powers by protecting the individual's reasonable of privacy. Reasonable expectation has been defined as follows: A person's privacy is intruded on in an unreasonable manner whenever the state, without a prior showing of just cause before a neutral judicial officer, arrogates to itself the right surreptitiously to record communications that the originator expects will not be intercepted by anyone other than the person intended by its originator to receive them. …