Where and When is it Reasonable to Expect Your Messages to be Private (and what protection does it offer anyway)?

When you text message someone, do you have a reasonable expectation of privacy in that message?

R. v. Pelucco was a 2015 BC Court of Appeal decision involving a warrantless search of text messages found in a cell phone.  The question was whether the sender had a reasonable expectation of privacy in those messages.   The majority concluded that when legal and social norms were applied, a sender would ordinarily have a reasonable expectation that the messages would remain private. Justice Groberman writing for the majority, concluded that the lack of control once the message had been sent was a relevant factor in assessing objective reasonableness, but not determinative.

I’ve written about this decision previously here.

What about when you message someone privately using an online platform? 

In R v Craig, released 11 April 2016, police obtained private online messages between Mr. Craig, E.V.  and several of E.V’s friends from Nexopia, a Canada-based social network site targeted at teens. 

Mr. Craig (22) and E.V.(13) originally met via (private) messaging each other on Nexopia.  Messaging continued, as did offline meetings that ultimately resulted in him (illegally) providing her with alcohol and having sexual relations (to which she could not legally consent, being 13) with her.  When two girls from E.V.’s school overheard a conversation with E.V. regarding her sexual encounter with Mr. Craig, they reported it to a school counsellor. The counsellor subsequently called the police, and the police investigation commenced. He was charged and convicted of sexual touching of a person under the age of 16,  sexual assault, and internet luring (communicating with a person under the age of 16 years for the purpose of facilitating the commission of an offence under s. 151 with that person). 

When the police interviewed E.V., she provided Mr. Craig’s name and logged on to her Nexopia account to print out messages between them, including a photo of Mr. Craig.    A friend of E.V. also provided pages from her own account containing messages with Mr. Craig in which he admitted to having sex with E.V. 

Police obtained a search warrant for messages on the Nexopia servers under the usernames of E.V., several of her friends, and Mr. Craig.  A number of the documents seized from Nexopia were not disclosed to the defence pursuant to a Criminal Code presumptively forbidding production of complainant or witness records when the charge is sexual assault or sexual interference.  A “record” is one that contains “personal information for which there is a reasonable expectation of privacy.” 

Craig argued that there was no reasonable expectation of privacy in those messages -- that the messages were sent, received and stored on Nexopia’s servers, and thus had never been private.  Accordingly, the defence should be able to access them. 

The threshold for reasonable expectation was articulated as the expectations of the sender at the time the message was sent.  In this case, the messages were “personal communications between friends and confidantes, and were not intended for wider circulation beyond the small circle of friends.”  Accordingly, there was a reasonable expectation of privacy in the messages and they were protected from having to be disclosed to Mr. Craig.

Mr. Craig then sought to exert his own reasonable expectation of privacy over (some of) the Nexopia messages.  The trial judge disagreed, finding that Mr. Craig had no reasonable expectation of privacy in the messages, even those he had authored and sent himself because he had no control over them after sending. 

On appeal, the “control” test was rejected:

While recognizing that electronic surveillance is a particularly serious invasion of privacy, the reasoning is of assistance in this case. Millions, if not billions, of emails and “messages” are sent and received each day all over the world. Email has become the primary method of communication. When an email is sent, one knows it can be forwarded with ease, printed and circulated, or given to the authorities by the recipient. But it does not follow, in my view, that the sender is deprived of all reasonable expectation of privacy. I will discuss this further below. To find that is the case would permit the authorities to seize emails, without prior judicial authorization, from recipients to investigate crime or simply satisfy their curiosity. In my view, the analogy between seizing emails and surreptitious recordings is valid to this extent. [para 63]

Instead, the Court of Appeal found that Mr. Craig DID have an objectively reasonable expectation of privacy in the messages seized by the police, on the basis of both:

• An emerging Canadian norm of recognizing an expectation of privacy in information given to third parties;

• The nature of the information itself, since it exposed intimate details of his lifestyle, personal choices, and identifying information;

 (The appeal continued on to find that not only did Mr. Craig have an expectation of privacy in the messages, but that his s. 8 Charter rights against unreasonable search and seizure had been violated.   HOWEVER, the violation was not egregious or intention, it had no or negligible impact on Mr. Craig’s interests, and accordingly admission of the messages into evidence would not bring the administration of justice into disrepute.  In fact, they noted, the case dealt with serious charges involving offences against a young teenager, and this too weighed in favour of admitting the evidence.  The appeal was dismissed, with the Court of Appeal finding that there had been no substantial wrong or miscarriage of justice at trial). 

So there you have it:

Yes, you may well have a reasonable expectation of privacy in messages you’ve sent to others, either via text or online platforms. 

Remember though, that doesn’t mean they stay private – it only means that they (and by extension you and your informational dignity and autonomy) must be treated in accordance with Charter protections