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Supreme Court of Canada Rules That Text Messages Are Private 143

Posted by Unknown Lamer
from the haven-for-terrorist-scum dept.
An anonymous reader writes "The Supreme Court of Canada has ruled that text messages are private communication (Official Ruling) and therefore police are required to get a warrant to gain access to the text messages of private citizens. The CBC reports: '[Supreme Court Justice Rosalie Silberman] Abella said the only practical difference between text messaging and traditional voice communications is the transmission process. "This distinction should not take text messages outside the protection to which private communications are entitled," she wrote.'" Quite different from the attitude in the U.S.
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Supreme Court of Canada Rules That Text Messages Are Private

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  • by Anonymous Coward

    Text messages are not generally stored on the telco's equipment. They log times and source/destination, but not the message contents. The contents are stored withing telco equipment until they are delivered and then they are deleted. If the recipient's phone always on.

    It would cost telcos money to store these things, and if they don't legally have to store them, they're not going to spend money to do so. It's akin to recording phone conversations - it's generally not done because there's no reason to pa

    • by Punko (784684) on Wednesday March 27, 2013 @01:33PM (#43293981)
      My understanding is that this particular telco was storing the texts. It wasn't that the police were interested in intercepting the messages live, but rather they wanted their general warrant to let them have access to the copies of the messages.

      The Court ruled that a wiretap warrant is required for the police to have access to the copies of the messages.

      As as I am aware, this telco is the only major player storing texts.
      • by vux984 (928602) on Wednesday March 27, 2013 @01:57PM (#43294225)

        My understanding is that this particular telco was storing the texts.

        According to the ruling, they stored the texts 'breifly'. It sounded like the police needed a daily capture of the data in order to get everything.

        Its not like these were long term logs.

        I would guess it was an implementation of the SMS queue where when you send a text that's undeliverable because the destination phone is unreachable it hold its it for a while to attempt to deliver it later. It probably just put all messages into the queue, marked delivered messages when they were delivered, and then purged them daily.

        At least that's what it sounded like to me.

        • by Synerg1y (2169962) on Wednesday March 27, 2013 @02:26PM (#43294517)

          Simply put: why should the police have access to anything without a reason? are they better than us? do they know better? are they magical?

          Nope they're just people like you and me.

          Short or long term neither they, or you and I should have access to anybody else's non-public information without a compelling reason.

          • by vux984 (928602)

            I never suggested they should. I was just clarifying what the telco was doing, as some of the commentary made it sound like the telco was logging everyone's text messages, when that really isn't quite accurate.

        • by nblender (741424) on Wednesday March 27, 2013 @03:36PM (#43295287)

          Telus has admitted that it stores text messages for '30 days' for diagnostic purposes... That's not "briefly", in my opinion.

        • "briefly" in this case means, I believe, several months. We looked into retrieving them as customers for use (long story, not getting into it), and I think we had 6 months or more to make the request for the text messages.

          • by vux984 (928602)

            Interesting. Thanks. That's not the impression I had gotten from the original article or even the court ruling.

      • by AdamWill (604569)

        As I read the CBC story, the effect of the judgement is that the police will need a specific warrant to gain access to SMSes regardless of whether that means live intercept or requesting them from some kind of storage. Some of the justices argued that the warrant should be required for live intercept but not for accessing a copy of the messages that the provider had made for its own lawful purposes (so this particular case should be allowed, but the court should rule that direct intercepts would require the

        • by Kleen13 (1006327)
          That's what I understand. Previously they were able to gain access to the stored messages under a General Warrant which is much easier to obtain. Now an Intercept Warrant would be required and is covered under Canada's privacy laws and is much more difficult to obtain. There was also some discussion that Telus would be discriminated against as not all other telecom's "store" sms messages which is the reason they were able to use the general warrants to begin with before this ruling. Cops are cops. They'
      • by compro01 (777531)

        Every Telco store SMS messages temporarily. SMS is a store-and-forward system.

      • by Anonymous Coward

        They are not the only major player storing texts. I know for a fact that at another Canadian telecom that they are stored for 30 days regardless if they were sent. This backup copy is a closely gaurded database with only a select few having access. They are stored for this extended period of time for troubleshooting purposes. If a customer calls in and complains that they aren't receiving texts, it is a lot easier to (A) troubleshoot if you have a copy of the messages or (B)prove that the telecom never

      • http://www.wired.com/threatlevel/2011/09/cellular-customer-data/ [wired.com]

        At least in the US most keep it for a period of time.

        I would assume the same in Canada, but I would hope the interval is shorter.

  • however it's not going to stop the US telco's from bending over backwards to give up all the info they can at the slightest provocation...
    • Yep, I've been increasingly considering taking what money and skills I have and trying to immigrate to a more sane country. Then I think it's an extreme solution, then the next bit of U.S. insanity takes hold, and I'm considering it again.

      • by tnk1 (899206) on Wednesday March 27, 2013 @02:52PM (#43294761)

        I wouldn't bother. I don't think there is a completely sane government left. You flee one set of crap, but the new country has another of it's very own issues. Some of the Scandinavian countries sound okay, but they have some questionable issues too.

        Of course if you have money, most of those issues evaporate no matter where you are.

      • by hawguy (1600213)

        Yep, I've been increasingly considering taking what money and skills I have and trying to immigrate to a more sane country. Then I think it's an extreme solution, then the next bit of U.S. insanity takes hold, and I'm considering it again.

        Maybe it would be easier to just encrypt your communications - modern smartphones are more than capable of encrypting txts, emails and voice communications.

    • Re:Good for them (Score:4, Insightful)

      by Jawnn (445279) on Wednesday March 27, 2013 @02:03PM (#43294279)
      Actually, I think they bend over the other way when holding up their end... of the deal. [rimshot] Thank you. I'll be here all week.
      Seriously, you are quite right. The U.S. telco's are totally complicit in the buggering of our civil rights. All save the late QWest, that is.
      • by Synerg1y (2169962)

        They're businesses they look at it like this:

        a. Fight the system > possible legal consequences > huge legal fees > lose anyways.
        b. Give the system what it wants > move on with your day.

        Notice how there's no laws governing either way: THAT is the real problem. Can't blame a business for being a business and being loyal to its stock holders, but then again teleco has never been known for doing the bare minimum in all aspects of business.

      • by Anonymous Coward

        There's a strong case to be made, which hasn't yet been pushed to the US Supreme Court, that texts are most certainly the equivalent to "papers" part of the 4th ammendment, and that the telecos voluntarily giving them over is no different than the postal service handing over letters without a search warrant. Issuing a national security letter for the destination is very different than the contents; in the 17th century, you put the address on the envelope and handed it to the federal government (postal servi

  • by Anonymous Coward on Wednesday March 27, 2013 @01:32PM (#43293975)

    The only question now is how long before we can get the same protection for ALL forms of communication, regardless of the technology used.

    • by ebno-10db (1459097) on Wednesday March 27, 2013 @01:43PM (#43294089)
      You mean how long before the US reinstates the 4th Amendment? Good question.
  • by Anonymous Coward

    This comes just after some fat-ass cock sucker border crossing guy in Canada went through my phone and read all my text messages. He even laughed at some of them. He took up a lot of my time and then let me proceed into Canada. Hmm maybe this ruling wouldn't have helped... I'm not a Canadian citizen.

    • by Anonymous Coward

      At least you go a free blow job out of it.

  • by UPZ (947916) on Wednesday March 27, 2013 @01:40PM (#43294047)
    It's understandable that government has a job to do in keeping the country safe. But if you don't have a legitimate warrant, you are overreaching the authority that you have been given by the people. That's the point in opposing warrantless spying. How can anyone be in favor of both warrantless spying and democratic form of government?
    • by Githaron (2462596) on Wednesday March 27, 2013 @01:48PM (#43294139)

      How can anyone be in favor of both warrantless spying and democratic form of government?

      Those that are in favor are those in power or those that "think of the children" without actually pausing to consider what it means when those children become adults.

    • by cheekyjohnson (1873388) on Wednesday March 27, 2013 @01:50PM (#43294163)

      It seems many people would rather the government give the appearance of trying to stop the terrorist bogeyman than respect people's freedom and privacy.

    • by realityimpaired (1668397) on Wednesday March 27, 2013 @01:58PM (#43294239)

      There are extreme circumstances where obtaining a warrant will take more time than you have, and in such cases, I don't oppose implementing a wire tap or intercepting communications to get the information needed, on two very important conditions: there is disclosure after the fact, and a warrant is subsequently obtained. The first speaks for itself, and for the second: If the warrant is not obtained for any reason, then any information gathered by this means can't be used in criminal proceedings. Given how much information can be gotten through such a tap, you'd better be absolutely certain that there is an urgent and immediate need to implement a tap, and that your evidence to justify it is adequate, otherwise you can throw your own case out by doing it.

      It is still possible to have that form of warrantless information gathering while still having an open and democratic government, but you need to be open about the information gathering too, when it happens. What passes for democracy in the states is a far cry from how I actually envision it.

      • by cheekyjohnson (1873388) on Wednesday March 27, 2013 @02:28PM (#43294531)

        There are extreme circumstances where obtaining a warrant will take more time than you have

        Too bad. Get a warrant.

        • by taucross (1330311)

          It's a tricky discussion for most because there can always be extenuating circumstances. If one's child were abducted, they knew it was the other parent (as is mostly the case), and there was imminent harm, a policy of retrospective warrants should be considered as a possibility.

          This isn't a "think of the children" argument, it's just that I would make a small sacrifice (of personal liberty) to perhaps save someone that someone else holds near and dear. And I would hope that they would make that sacrifice f

          • This isn't a "think of the children" argument

            It's an argument not dissimilar to one the TSA would make, with the only real difference being that it's not about the terrorist bogeyman.

            it's just that I would make a small sacrifice (of personal liberty) to perhaps save someone that someone else holds near and dear.

            That's where you and I differ. I think we've been making far too many 'small' sacrifices as of late and that this 'protect us at the expense of freedom' mentality is poison.

      • So it's okay to get a warrant to obtain information using information obtained without a warrant? Or if you suspect you need a warrant but can't get one and you're afraid it might be too late? How about we just start preemptively start pulling people over for speeding because they are going downhill. I guess the whole concept of innocent until proven guilty is kind of lost here isn't it.

        The authorities should not have a right to go on a fishing expedition and hope they find something incriminating. I
        • So it's okay to get a warrant to obtain information using information obtained without a warrant? Or if you suspect you need a warrant but can't get one and you're afraid it might be too late? How about we just start preemptively start pulling people over for speeding because they are going downhill. I guess the whole concept of innocent until proven guilty is kind of lost here isn't it.

          That's a slippery slope, and you know it. Any lawyer worth their salt would have a field day in court against police using a warrant in such a manner. In fact, I do believe that's how Gotti managed to get off a few times....

          The exemption I'm talking about is in the case where there's a life threatening emergency, and you simply don't have the time to get a warrant, in which case as long as the need was immediate, you disclose that it's been done, and the warrant is issued after the fact (on basis of the inf

          • by Reverand Dave (1959652) on Wednesday March 27, 2013 @05:16PM (#43296635)
            No shit it's a slippery slope. The whole thing is a slippery slope which is why you have to objectively say "no" right out of the gate. There are already a special set of rules for life threatening situations. The police don't need a warrant to enter your house if you're holding a gun to someone's head. The don't need a warrant to arrest you if you're waving a gun around in public. Those are separate issues than spying on someone and if a threat is really imminent enough that you need to illegally tap a phone to save a life, you're kind of already too late. Make the police do the job they were hired to do like everyone else. No cutting corners. Period.
            • by Sabriel (134364)

              Hmm. Are the hypothetical situations you named really all that different? Every one of them is about an immediate life threatening situation, whether it's entering a house (officer discovers you're about to shoot a hostage) or tapping a phone (officer discovers you're about to order where to plant a bomb), and the same rules can be applied (a short period after the fact to prove to a judge your decision was justified or kiss your badge goodbye).

              Makes me wonder if you might live in one of those places where

      • by Darinbob (1142669)

        I still think the warrant must be obtained in advance. Otherwise the ability to do this will be abused. It's better to let a few guilty people go in this case. For special circumstances we already have special police-friendly courts that rubber stamp warrants. This is a fundamental principle that we shouldn't relax.

        The government and law enforcement agencies around the world have proved through long experience that they will not voluntarily restrict their powers but will instead stretch it as far as the

    • by Zeromous (668365)

      It's called Fascism, and most people have forgotten what it looks like.

  • by ThorGod (456163) on Wednesday March 27, 2013 @01:42PM (#43294067) Journal

    The thing to remember is that the US is a much larger country. This is in terms of population. For that reason, there are likely to be more extremes in the US, just as a numerical property of a larger population.

    (Not really a complete thought, just thinking on /.)

    • by MachDelta (704883)

      That should make China and India some pretty extreme countries, no?

      Occam's razor might instead pin the weirdness on America [slashdot.org], though. And I don't mean that to be insulting in any way, just to point out that that cultural perspectives are a hell of a thing.

      • by gstoddart (321705)

        That should make China and India some pretty extreme countries, no?

        And you'd be right. Both countries have extreme poverty, and extreme wealth.

        And certainly I doubt that the majority of Indians will accept that a woman out after dark deserves to be gang-raped, yet some of their politicians made the suggestion that 'nice women' wouldn't be out alone in the first place.

        • Both countries have extreme poverty, and extreme wealth

          And what does it have to do with country size? The same extremes do exist in tiny countries.

          • The thing to remember is that the US is a much larger country. This is in terms of population. For that reason, there are likely to be more extremes in the US, just as a numerical property of a larger population.

            The grandparent poster meant "extremes" as in "people who lean towards extreme positions on some scale".
            The actual word he was looking for is "extremists".

            And yes, a larger population would have a greater number of extremists - all other things being equal.
            Which they are kinda not.

            Total number of extremists in a given population is a function of the percentage of their prevalence in said population and the size of that very same population.
            2 million gingers in a country of 200 million here they represent 1%

  • Summary incorrect (Score:2, Informative)

    by Anonymous Coward

    As always, TFS is incorrect. Reading THE FIRST PARAGRAPH of the linked decision will tell you that.

    The police in this case obtained a general warrant and related assistance order under ss. 487.01 and 487.02 of the Criminal Code requiring Telus to provide the police with copies of any stored text messages sent or received by two Telus subscribers. The relevant part of the warrant required Telus to produce any messages sent or received during a twoweek period on a daily basis. Telus applied to quash the ge

  • The next question: How is sending a written message to a selected number of friends on a social network different from doing the same with text messages on a phone?

    • Because unless you use the private message feature (if there's one), it's not actually private. And even then it's just as private as the terms of service state it is.
  • summary is incorrect (Score:5, Informative)

    by sdavid (556770) on Wednesday March 27, 2013 @02:32PM (#43294581)
    The Supreme Court decision requires a wiretap authorization, which is harder to get than a warrant. A warrant was always required and no one was arguing that it wasn't. Telus, for whatever reason, stores its text messages for some time. In this case the cops wanted to access these stored text messages as they were coming in. To work around the more difficult requirements of a wiretap authorization, they used a general warrant on the grounds that this was saved correspondence, not live communication. The majority of the Court didn't buy that argument, saying that this went against the purpose of the wiretap provisions, which is to protect interactive communication. What's interesting is that the majority didn't get tied up in the specifics of how the messages were handled and went with this purposive analysis.
    • by green1 (322787)

      Which is exactly as it should be. the laws are all about intent, nobody cares how you do something, they care about the end result. "on a phone", "on the internet", "on the computer", "over text message" appended to the end of any existing action doesn't change the action. Laws should always be interpreted in a technologically agnostic way. Otherwise you'll never keep up with every new device invented that you failed to write in to the last version of the law.

      If you need special paperwork to eavesdrop on my

  • This can be changed with a simple new law, and Canadian conservatives have been pushing for that. Like many other nations, there are also numerous exceptions. Furthermore, AFAIK illegally obtained evidence is still admissible in Canadian courts, which is a huge loophole.

    • by m.ducharme (1082683) on Wednesday March 27, 2013 @03:53PM (#43295557)

      Illegally obtained evidence can be ruled still admissible in Canadian courts. It's not automatic, the trial judge would have to rule on the admissibility on a case by case basis, depending on
      1) the seriousness of the Charter-infringing conduct of the State
      2) Impact of the Charter-Protected Interests of the Accused
      3) Society's Interest in an Adjudication on the Merits

      Basically, if the charge is serious and the cop can come up with a good reason for the breach, the evidence will probably go in. If the officer in charge basically just didn't care about your rights and dumped all over them, well then the Crown would have some trouble.

  • Yes!!! (Score:4, Insightful)

    by houbou (1097327) on Wednesday March 27, 2013 @02:38PM (#43294657) Journal
    As it should be. However, telephone companies should not be archiving them, without permission from the client.
    • by hawguy (1600213)

      Has any telco stated (or even implied) that txt messages are deleted from their system upon delivery? Since they have to store messages for some period of time to queue them for delivery and pass them around their network, I wouldn't be surprised if they end up on backup tapes and stored for quite some time.

    • by green1 (322787)

      From what I understand the archive is for troubleshooting purposes. and is kept for 30 days. Without a lot more information about how they actually troubleshoot text message problems, it's hard for me to say if that's reasonable or not.
      I can however say I'm glad that TELUS pushed back on this, even with a general warrant they didn't release the information, even after loosing on appeal, they still pushed all the way to the Supreme Court to push for a wiretap order instead of the warrant. I am quite surprise

  • by ThatsNotPudding (1045640) on Wednesday March 27, 2013 @03:10PM (#43294959)
    How many warrant requests - even in Canada - are not automatically rubberstamped by Judge Judy when handsome Constable John Law comes calling? Especially when there is no one arguing against the request or even know it's occuring.

    It's the right ruling, but the effect will be depressingly miniscule.
    • It's "wiretap authorization". And more...

      From the ruling:

      The technique sought to be authorized here is not the substantive equivalent of a wiretap authorization. On the facts of this case, a wiretap authorization alone would not allow the police to obtain the information that Telus was required to provide under the general warrant. Three separate authorizations would be required in order to provide the police with the means to access the information provided to them under the general warrant. Therefore, even if one were to accept reading into s. 487.01(1)(c) a âoesubstantive equivalencyâ test, neither the facts nor the law would support its application in this case.

      I.e. What they were asking for was not covered by a single type of warrant. They would need three different authorizations for all that.

      The conditions for issuing a production order are similar to those for a search warrant. The issuing justice or judge must be satisfied by information on oath that an offence has been or is suspected to have been committed, the documents or data will afford evidence respecting the commission of the offence and that the person to whom the order is directed has possession or control of the documents or data (s. 487.012(3)). In addition, the person to whom the order is directed cannot be a person under investigation (s. 487.012(1)).

      unlike search warrants and production orders that may be issued by judges or justices of the peace, general warrants may only be issued by judges (s. 487.01(1)). Second, âoethe judge [must be] satisfied that it is in the best interests of the administration of justice to issue the warrantâ (s. 487.01(1)(b)). Third, a general warrant must âoecontain such terms and conditions as the judge considers advisable to ensure that the search or seizure authorized by the warrant is reasonable in the circumstancesâ (s. 487.01(3)). Fourth, a general warrant may be issued only if âoethere is no other provision . . . that would provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be doneâ (s. 487.01(1)(c)). In other words, a general warrant may not be used to authorize a âoetechnique, procedure or device to be used or . . . thing to be doneâ if there are other provisions in the Code (or elsewhere) that could authorize it.

      An authorization to intercept private communications under Part VI of the Code allows police to receive messages as they are being sent or received by subscribers. These sorts of authorizations are subject to even more strict conditions than those which apply to general warrants. They may only be issued by a judge of a superior court of criminal jurisdiction. The Attorney General, the Minister of Public Safety and Emergency Preparedness or a specially designated agent must bring the application (s. 185(1)). There are specific and detailed provisions relating to what must be placed before the judge. The issuing judge must be satisfied not only that it would be in the best interests of the administration of justice to issue the authorization but also that the so-called âoeinvestigative necessityâ test has been met (s. 186(1)). This means that the judge must be satisfied that âoeother investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative proceduresâ (s. 186(1)). The authorization may generally not be valid for more that 60 days (s. 186(4)(e)) and there are notice and reporting requirements (s. 196).

      In short, they'd need to "rubberstamp" the Attorney General or the Minister of Public Safety and Emergency Preparedness.

    • this is a problem that no one addresses.

      yeah, 'get a warrant' is bullshit if its rubberstamped.

      what we need is a check-balance system that involves CITIZENS (not those in power or officials or politicians or judges). citizens will more likely push back on invasions of their privacy. who else speaks for us? only us!

      therefore, I would propose that every single fucking warrant gets reviewed (afterwards) and if the citizen committee finds that it was not just, there would be PAIN involved for those that comm

  • by wjwlsn (94460) on Wednesday March 27, 2013 @04:14PM (#43295863) Journal

    Just last month, the Ontario Appeals Court ruled that a cellphone that's not digitally locked (such as with a password) can be searched without a warrant... but if locked, a warrant is required.

    http://yro.slashdot.org/story/13/02/21/1343231/cellphone-privacy-in-canada-encryption-triggers-need-for-warrant [slashdot.org]

    Now the Canadian Supreme Court says that access to text messages requires a warrant. This is interesting because the Ontario case from last month involved text messages that were searched without a warrant.

    http://arstechnica.com/tech-policy/2013/02/cops-can-search-mobile-phoneonly-if-its-not-password-protected/ [arstechnica.com]

    I would assume that the Canadian Supreme Court ruling takes precedence over the Ontario Appeals Court ruling... for text messages. However, photos, video, chat logs, etc apparently don't get the same protection.

    So... lock your phone with a password, no matter what... even if it's just a minimal one that's easy to type.

    • by Anonymous Coward

      this is about warrants to the service provider, not physically searching someone's phone.

  • "The CBC reports: '[Supreme Court Justice Rosalie Silberman] Abella said the only practical difference between text messaging and traditional voice communications is the transmission process." I wish judges in USA all were this intelligent... So many laws have been passed to benefit big business that I think judges get confused and forget about the basic fundamental laws.
  • What is this word "private" .. it interests me.

Aren't you glad you're not getting all the government you pay for now?

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