Telus Communications Company v. HMQ (SMS Interception)

CIPPIC intervened in R. v. Telus Communications Company, 2013 SCC 16, in which the Supreme Court of Canada was called upon to decide the extent to which important privacy protections offered for the interception of private communications should apply to advanced communications delivery mechanisms such as those used by some providers for text messaging. Normally, a special interception warrant (called a Part VI authorization) is required before police are authorized to access private communications that have not yet occurred. In this case, however, the government argued it should be able to bypass the critical privacy protections found in Part VI because one company, TELUS, decides to temporarily store these as part of its message delivery process. The premise for this argument was that Part VI only protects against 'interceptions', and you cannot 'intercept' something that is not in motion, including TELUS' temporarily stored text messages. Therefore, the government can gain access to future messages that have not yet been sent, and no 'interception' occurs since the messages are taken from TELUS' stored databases.

The problem is that, while real-time voice was the predominant form of electronic communications in the late 70s when Part VI protections were enacted, many forms of electronic communications, including SMS and email, employ temporary storage as part of the delivery process. The question then arises: do we throw away a critical set of privacy protections just because private communications are being transmitted by new techniques? In our intervention in this case, we argued against an overly narrow definition of Part VI that would defeat its ultimate purpose -- the protection of private communications. Today's decision saw a 5-3 majority of the Supreme Court rejecting the argument that police can do what is effectively and practically the type of 'electronic conversation' that Part VI was intended to protect. Access to text messages that have not yet been sent normally requires Part VI authorization. Just because TELUS stores its messages for a short period of time as part of the delivery process does not mean Part VI can be ignored.

The protections in Part VI are specifically designed to address the invasive nature of electronic surveillance, and text messages raise all of these. Part VI ensures that police can only intercept private communications for serious offences, should not resort to such invasive techniques if other techniques are available, and must notify individuals within a reasonable period of time that their communications had been intercepted. These protections are critical and designed to address the specific challenges of electronic surveillance: it is relatively cheap, provides immense amounts of information often well beyond what is anticipated or the criminal activities being investigated, and is highly surreptitious -- you will never know you have been surveyed unless evidence of criminal activity is found and charges are brought. By opening a window into our private conversations and interactions, wiretapping facilitates expansive access to highly sensitive information and its well-documented historical misuses can be antithetical to democratic processes. At the time Part VI was passed, Canadian law enforcement found wiretapping to be so effective a tool, that they would employ two wiretaps for every one used annually by their counterparts to the south, net. This amounted to a 20:1 Canada to U.S. wiretapping ratio on a per capita basis. Since the passing of Part VI, law enforcement have adopted more focused wiretapping practices that bring them closer in line with other jurisdictions.

The decision, and particularly Abella, J.'s reasons (writing for herself, Justice LeBel and Justice Fish) recognizes that Canadians view text messages much in the same way as they view other private communications and expect the same levels of protections to apply to both. This is a very sensible approach. SMS, while not as 'real-time' an interaction as a phone call, is, as Abella, J. puts it, "in essence, an electronic conversation", as private and intimate as voice communications. Given their comparably sensitive nature, they demand similar levels of protection. Surreptitious wide-spread surveillance of text messages would chill the use of this communications medium to the same extent as would occur with voice interactions. Importantly, just because TELUS' communications delivery system does not fit neatly within the historical paradigm of 'communications', police should not be able to bypass key privacy protections to accomplish what is, effectively, the same invasive activity. As Justice Moldaver notes (writing a concurring opinion on behalf of himself and Justice Karakatsanis), such a "narrow focus on the mechanics of the search is to miss the forest for the trees". The dissent, penned by Justice Cromwell (for himself and Chief Justice McLachlin), held that Part VI was designed for real-time voice interceptions. This leaves it to parliament to ensure privacy protections continue to provide comparable levels of privacy protection in light of technological change. While some such updates are certainly best left to the more nuanced legislative process, our federal government has in the past proven much more eager to update surveillance powers while less willing to update privacy protections.


*This page was last updated on March 27, 2013

Tamir Israel, Staff Lawyer, CIPPIC*