What happens to your texts once sent? Are they yours? Do you have a right to them?
The Supreme Court’s recent decision in Marakah says yes, you do have privacy rights with respect to your outgoing text messages.
In Marakah, the Court looked at whether the appellant had a reasonable expectation of privacy in text messages that were seized pursuant to a search warrant executed at his and his co-accused Winchester’s homes.
R. v. Marakah: What Happened?
Marakah sent text messages to his accomplice, Winchester, regarding illegal firearm transactions. The police obtained warrants to search the homes of the two men. Police seized Marakah’s Blackberry and Winchester’s iPhone, searched both devices, and found the suspicious text messages. Charges were subsequently laid against Marakah, and the Crown sought to use the text messages as evidence against him.
At trial, Marakah argued against the admission of the text messages on the basis that they were obtained in violation of his s. 8 Charter right. The trial judge held that the warrant for Marakah’s home was invalid and that the text messages from his phone could not be used against him, but that Marakah had no standing to argue that the text messages recovered from Winchester’s phone should not be admitted against him.
The text messages from Winchester’s phone were subsequently admitted and Marakah went on to be convicted of several firearm offences. A majority of the Court of Appeal for Ontario agreed that Marakah could have no expectation of privacy in the text messages located from Winchester’s phone.
Section 8 Protection for Text Messages
Justice McLachlin, writing for the majority, held that, depending on the totality of circumstances, text messages that have been sent and received may in some cases be protected under s. 8, and, in this case, Marakah did have standing to argue that the text messages at issue were under the purview of s. 8 protection.
In arriving at this conclusion, Justice McLachlin wrote that their analysis was guided by four lines of inquiry:
- What was the subject matter of the alleged search?
- Did the claimant have a direct interest in the subject matter?
- Did the claimant have a subjective expectation of privacy in the subject matter? and
- If so, was the claimant’s subjective expectation of privacy objectively reasonable?
Subject Matter of the Search
In this case, the subject matter of the search was Marakah’s electronic conversation (i.e.: the text messages) with Winchester. In discussing what courts must look for in deciding whether text messages can be considered subject matter, Justice McLachlin wrote at para 19:
When a text message is searched, it is not the copy of the message stored on the sender’s device, the copy stored on a service provider’s server, or the copy in the recipient’s “inbox” that the police are really after; it is the electronic conversation between two or more people that law enforcement seeks to access. Where data are physically or electronically located varies from phone to phone, from service provider to service provider, or, with text messaging more broadly, from technology to technology. The s. 8 analysis must be robust to these distinctions, in harmony with the need to take a broad, purposive approach to privacy protection under s. 8 of the Charter . . . The subject matter of the search is the conversation, not its components.
Direct Interest of the Texter
Moving on to the second part of the inquiry – whether Marakah had a direct interest in the subject matter – Justice McLachlin wrote that he did, by virtue of being both a participant and author in the impugned text messages.
With respect to whether Marakah held a subjective expectation of privacy in the text conversations with Winchester, Justice McLaughlin found very simply that he obviously expected that the contents of these messages would remain private.
Reasonable Expectation of Privacy and Text Messages
Of note in Marakah is the care Justice McLaughlin took to make clear that the analysis for finding whether a text message could attract a reasonable expectation of privacy was very fact-specific. As Justice McLaughlin clearly stated at para 5:
The conclusion that a text message conversation can, in some circumstances, attract a reasonable expectation of privacy does not lead inexorably to the conclusion that an exchange of electronic messages will always attract a reasonable expectation of privacy.
In looking to line 4 of inquiry – whether Marakah’s subjective expectation of privacy was objectively reasonable – the importance Justice McLachlin’s highlights the importance of the totality of the evidence.
To assess whether it was reasonable for Marakah to expect privacy in these circumstances, Justice McLachlin looked at the following factors: 1. the place where the search occurred; 2. The private nature of the matter; and 3. Control over the subject matter.
When looking at the place of the search, Justice McLachlin at para 28 suggests that, moving forward, it may be helpful to view that the electronic conversation itself is “every bit as real as physical space”. Another possibility, she suggests at para 29, is that the place of the search is the device where the messages are accessed or stored.
With respect to whether the information found was private or biographical, Justice McLachlin at para 37 finds that “[e]lectronic conversations. . .are capable of revealing a great deal of personal information.” Thus, she continues, preserving that “zone of privacy” from state intrusion is the very purpose of s. 8 of the Charter. This “zone of privacy” can extend beyond one’s own mobile device; it can include private conversations shared with others, such as the instant case.
In looking to the final factor, whether Marakah lost all control over electronic messages he sent to Winchester, Justice McLachlin finds that the cases on this issue are clear: at para 41, she states that a person does not lose control of information for the purpose of s. 8 simply because another person possesses it or can access it. Even when faced with issues of exclusivity as they can arise in this age of technology, Justice McLachlin finds that one can still reasonably expect information to remain safe from state scrutiny. Specifically, Justice McLachlin concludes that the risk that Winchester could have disclosed the text messages following receipt does not negate Marakah’s control over the information continued therein. By choosing to send a text message by way of a private medium to a designated person, Marakah was exercising control over the electronic conversation. The risk that the recipient could have disclosed it, if he chose to, does not negate the reasonableness of Marakah’s expectation of privacy against state intrusion.
Ultimately, and decisively for the purposes of this appeal, Justice McLachlin held that Marakah’s subjective expectation that his electronic conversation with Winchester would remain private to be objectively reasonable. Finding the search of Winchester’s phone to be in breach of s.8, Justice McLachlin allowed the appeal, overturned the convictions, and entered acquittals.
Marakah is a strong pronouncement with respect to digital privacy laws in Canada. Marakah is instructive to police, as it states that lawful authority is needed to examine and seize text message conversations. The Court in Marakah makes a finding in this case that is progressive, and promotes fairness, clarity and efficiency.
 The following is an excerpt from an upcoming article in the 2017-2018 Supreme Court Law Review, titled “Developments in Criminal Procedure: the 2017-2018 Term”, authored by Richard Litkowski and myself.