Texting is one of the most common forms of communication we have today. In many ways, it’s great. It’s fast, easy, and is a great way to coordinate, keep in touch, check in, and say what needs to be said and no more.
It’s also officially no longer private in Canada. But were text messages ever truly private to begin with? Does anything we put down in writing – from letters to diaries to shopping lists – EVER actually come with the expectation that no one unintended will read it?
Wiretap laws protect your phone conversations, whether from a landline or a cell phone. Text messages? Not in Canada. A ruling in the Ontario Court of Appeal released on July 8th concluded that a search warrant can be issued to view received text messages on the cell phone of a person under investigation.
Dissenting Judge H.S. LaForme put forth the opinion that “A typical exchange of text messages is a private communication between two people. It is essentially a modern version of a conversation and can contain as much private information as an oral conversation.”
Unfortunately, the majority of the judges in this case did not agree.
One important thing to note about this ruling is that text messages SENT cannot be viewed with this warrant, only messages RECEIVED. This may provide a privacy loophole, but just how this will work is unclear. Why is there a difference in what can and cannot be searched? The court decided that when you send a text, you actually have no expectation of privacy to begin with. Once the message arrives, the recipient now owns the text and can show the message to whomever. Screen shots of text message conversations are common, and people also commonly show their text messages to each other. It has also become a not-uncommon and alarming token of trust between couples to go through each other’s text messages – with or without each other’s knowledge or consent. Going through your significant other’s cell phone happens, and we all know about it. So how can we expect our text messages to remain private once they are sent?
This is exactly what happened in the case in the Ontario Court of Appeal. This case involved Nour Marakah and Andrew Winchester. They were texting each other about illegally purchasing firearms. During searches of their homes, the police seized their cell phones and – by extension – their text messages. During the appeals process, the court ruled that while the text messages Marakah sent were not admissible as evidence, those same texts that Winchester received were.
The moral of the story? Don’t arrange to buy illegal firearms via text message.
But really, the moral of the story is nothing new. Anything you put in writing can be used against you, whether it’s a letter, an email, a list, or a text.