Textual Privacy and Mobile Information

Abstract

The privacy of text messages, when retrieved from the recipient, continues to be a problem in Canadian jurisprudence, in part because the courts have repudiated the American third-party doctrine, and in part because the courts have used different tests which they apply haphazardly. I propose that despite this complexity, the question affords a relatively simple answer. Normatively speaking, there is no reason to distinguish among letters, email, and text messages: they all attract the same basic privacy interest. However, if the police have objective grounds for believing that particular individuals have been exchanging text messages in furtherance of a crime, the standard of reasonable suspicion is sufficient to justify a limited search, aimed solely at obtaining those messages. This approach allows the public to remain secure in the knowledge that their text messages are not open to random and baseless searches by the police, while nevertheless affording the police access to text messages just when they can articulate objective grounds for believing that the messages will disclose evidence of crime.