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<p>Many moons ago, ISPs were concerned that they would be legally
required to eavesdrop on their customers, and the GTALUG board
spun off a group to follow and comment on legalistic and political
matters. <br>
</p>
<p>The posting below is specifically about misbehavior by Telus, but
it's also a potted history of the improvement of the situation in
Canada over time, and over the US, where stored communications cab
be seized without a warrant. <br>
</p>
<div class="moz-forward-container">--dave<br>
[This is a resend: the first one was too big]<br>
<br>
-------- Forwarded Message --------
<table class="moz-email-headers-table" border="0" cellspacing="0"
cellpadding="0">
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<th align="RIGHT" nowrap="nowrap" valign="BASELINE">Subject:
</th>
<td>Telus Texts Not Intercepted When Stored</td>
</tr>
<tr>
<th align="RIGHT" nowrap="nowrap" valign="BASELINE">Date: </th>
<td>Mon, 25 Jun 2018 03:37:59 +0000</td>
</tr>
<tr>
<th align="RIGHT" nowrap="nowrap" valign="BASELINE">From: </th>
<td>Omar Ha-Redeye <><br>
</td>
</tr>
</tbody>
</table>
<br>
<a class="moz-txt-link-freetext"
href="http://www.slaw.ca/2018/06/24/telus-texts-not-intercepted-when-stored/">http://www.slaw.ca/2018/06/24/telus-texts-not-intercepted-when-stored/</a><br>
<br>
<title>Telus Texts Not Intercepted When Stored</title>
<base
href="http://www.slaw.ca/2018/06/24/telus-texts-not-intercepted-when-stored/">
<p class="lead">Many Canadians confuse the law when it comes to
recording telephone conversations, likely due to exposure to
American concepts in the media. Although the Wiretap Act of 1968
(18 U.S.C. § 2511) contains a one-party consent rule, a dozen
states have a two-party consent that supersedes American Federal
law, and given its presence in California (Cal. Penal Code §
632), it’s likely that this is often the source of the
misunderstanding in Canada.</p>
<p>In Canada, we have <a
href="https://qweri.lexum.com/w/calegis/rsc-1985-c-c-46-en#%21fragment/PART_VI_Invasion_of_Privacy_779805/KGhhc2g6KGNodW5rxIVhbsSHb3JUZXh0OlBBUlRfVklfSW52xIJpb25fb2ZfUHJpxKFjeV83Nzk4MDUpLG5vdGVzUXVlcnk6Jycsc2Nyb2xsQ8SIxIo6IW7FhmVhcsSHxL7FgMWCxYTFk8WVxIdTxJB0QsWCUkVMRVZBTkNFLHRhYjp0b2MpKQ=="
moz-do-not-send="true">Part VI</a> of the Criminal Code, which
states,</p>
<blockquote>
<h6 class="MarginalNote">Consent to interception</h6>
<p class="Section"><strong><span class="sectionLabel"><span
class="">183.1</span></span></strong> Where a private
communication is originated by more than one person or is
intended by the originator thereof to be received by more than
one person, a consent to the interception thereof by any one
of those persons is sufficient consent for the purposes of any
provision of this Part.</p>
</blockquote>
<p>An unauthorized interception is subject to an indictable
offence, and serves to protect against the invasion of privacy.
These provisions are also applicable to law enforcement,
limiting the ability of the police to eavesdrop into the
conversations of Canadian citizens.</p>
<p>The Court in <a href="http://canlii.ca/t/1fszz"
moz-do-not-send="true"><em>R. v. Duarte </em></a>explained the
rationale for this as follows,</p>
<blockquote>
<p style="font-weight: 400;">The rationale for regulating the
power of the state to record communications that their
originator expects will not be intercepted by anyone other
than the person intended by the originator to receive it (see
definition section of Part IV.1 of the<em> Code</em>) has
nothing to do with protecting individuals from the threat that
their interlocutors will divulge communications that are meant
to be private. No set of laws could immunize us from that
risk. Rather, the regulation of electronic surveillance
protects us from a risk of a different order, i.e., not the
risk that someone will repeat our words but the much more
insidious danger inherent in allowing the state, in its
unfettered discretion, to record and transmit our words.</p>
<p style="font-weight: 400;"> The reason for this protection is
the realization that if the state were free, at its sole
discretion, to make permanent electronic recordings of our
private communications, there would be no meaningful residuum
to our right to live our lives free from surveillance. The
very efficacy of electronic surveillance is such that it has
the potential, if left unregulated, to annihilate any
expectation that our communications will remain private. A
society which exposed us, at the whim of the state, to the
risk of having a permanent electronic recording made of our
words every time we opened our mouths might be superbly
equipped to fight crime, but would be one in which privacy no
longer had any meaning. As Douglas J., dissenting in<em> United
States v. White</em>,<em> supra</em>, put it, at p. 756:
“Electronic surveillance is the greatest leveler of human
privacy ever known.” If the state may arbitrarily record and
transmit our private communications, it is no longer possible
to strike an appropriate balance between the right of the
individual to be left alone and the right of the state to
intrude on privacy in the furtherance of its goals, notably
the need to investigate and combat crime.</p>
</blockquote>
<p>There are several mechanisms through which law enforcement can
obtain this information. The first is through a wiretap under a
Part VI authorization, which can include a general wiretap
authorized under s. 185 and 186, a wiretap with consent under s.
184, and an emergency wiretap under s. 184.4 and 188. The latter
two do not require full judicial authorization, but a reasonable
belief is required that a specific offence has been, is being,
or is about to be committed. Police are required to have
reasonable and probably grounds to believe that the target of
the wiretap will be engaging in a particular communication that
will provide evidence for an investigation.</p>
<p>A less common way to obtain communications information would be
through using a Production Order under <a class="reflex2-link"
href="https://qweri.lexum.com/calegis/rsc-1985-c-c-46-en#%21fragment/sec487.012"
target="_blank" rel="noopener" moz-do-not-send="true">s. 487.012<span
class="decisia-reflex2-icon"> </span></a> of the <i><a
class="reflex2-link decisia-visited-link"
href="https://qweri.lexum.com/calegis/rsc-1985-c-c-46-en"
target="_blank" rel="noopener" moz-do-not-send="true">Criminal
Code<span class="decisia-reflex2-icon"> </span></a></i> (now <a
class="reflex2-link"
href="https://qweri.lexum.com/calegis/rsc-1985-c-c-46-en#%21fragment/sec487.014"
target="_blank" rel="noopener" moz-do-not-send="true">s. 487.014<span
class="decisia-reflex2-icon"> , </span></a>following <span
style="font-size: 1em;">Bill C-13: P</span><span
style="font-size: 1em;">rotecting Canadians from Online Crime
Act 2014). </span>A Production Order has a much less stringent
requirements than a Part VI authorization, but its use is
limited by the technological practices employed by different
telecommunication companies.</p>
<p>The Court in <a
href="https://www.canlii.org/en/ca/scc/doc/2017/2017scc59/2017scc59.html"
moz-do-not-send="true"><em>R. v. Marakah </em></a>confirmed
last year that both sent and received text messages can
potentially attract a reasonable expectation of privacy, and
therefore receive s. 8 <em>Charter </em>protections. The
companion case of <em><a href="http://canlii.ca/t/hp63x"
moz-do-not-send="true">R. v. Jones</a> </em>examined the use
of a Production Order to obtain some text messages given the
privacy expectations that text messages should receive.</p>
<p>The police in this case were able to obtain incriminating text
messages because the service provider here, Telus, maintained a
copy of sent and received texts on their servers for service
purposes. The obtained several Production Orders against other
service providers as well, but because they did not store the
texts in this way they could not be provided to the police. They
are legally entitled to do so under an exception in s. 184(2) of
the <i>Code. </i></p>
<p>The significance of this unique practice was highlighted in the
Court’s 2013 decision in <a
href="https://www.canlii.org/en/ca/scc/doc/2013/2013scc16/2013scc16.html"
moz-do-not-send="true"><em>R. v. TELUS Communications Co. </em></a>where
the Court stated,</p>
<blockquote>
<p>[59] The fact that Telus stores its subscribers’ text
messages in this manner is significant — indeed, it is the
reason this appeal exists — because it creates an
investigative resource for the authorities.</p>
</blockquote>
<p>This decisions was released during the accused’s trial in <em>Jones</em>,
but the trial judge dismissed the application to re-open the s.
8 ruling. The Court in <em>Jones </em>referred to the <em>TELUS </em>case
as follows,</p>
<blockquote>
<p>[44] <i>TELUS</i> implicitly acknowledges that, as a
normative matter, it is reasonable to expect a service
provider to keep information private where its receipt and
retention of such information is incidental to its role of
delivering private communications to the intended recipient.
That is intuitive. One would not reasonably expect the service
provider to share his text messages with an unintended
recipient, or post them publicly for the world to see.</p>
</blockquote>
<p>Despite this reasonable expectation of privacy in the subject
matter of the texts, the Court’s analysis focused on the
reasonableness of the search itself through the use of a
Production Order as opposed to a Part VI authorization. This
issue was not addressed in <em>TELUS</em>, which instead focused
on prospective production of future text messages under Part VI
authorizations for future communications.</p>
<p>The majority’s decision hinged on an interpretation of the
provisions by distinguishing interception and disclosure, the
former requiring a prospective application of information. A
Production Order, in contrast, was providing a copy of records
that Telus had already intercepted and stored, and had done so
lawfully under the Part VI exceptions. The majority of the Court
concluded,</p>
<blockquote>
<p>[77] In short, the state action in this case respected
Part VI’s distinction between the interception of
communications in ss. 184 to 192 and the disclosure of
previously intercepted and stored communications as
contemplated by s. 193. Based on the evidence, it also
respected the requirement in <i>TELUS</i> that a Part VI
authorization be obtained for text messages that are still in
the transmission process. Law enforcement cannot receive
authorization to effectively intercept future communications
through the “backdoor” of the general search and seizure
regime in s. 487 of the <i>Code</i>. But law enforcement
could — and did, in this case — lawfully obtain records of
historical text messages by means of a Production Order under
s. 487.012 of the <i>Code</i> (as they can still do now under
s. 487.014).</p>
<p>…</p>
<p>[80] Production orders must therefore be carefully
circumscribed to ensure that authorized police techniques
comply with <a class="reflex2-link"
href="https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec184subsec1_smooth"
moz-do-not-send="true">s. 184(1)</a>. A production order
must not authorize, or potentially authorize, the production
of any text messages that are either not yet in existence or
are still capable of delivery at the time the order is issued.
This should be clear from the face of the order. Where the
technique at issue is an intercept within the meaning of <a
class="reflex2-link"
href="https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec184subsec1_smooth"
moz-do-not-send="true">s. 184(1)</a>, then the application
is properly rejected and a Part VI authorization must be
obtained. A production order should not be used to sidestep
the more stringent Part VI authorization requirements.</p>
</blockquote>
<p>The challenge with applying this ruling is that it necessarily
involves the invasion of privacy and disclosure of information
of individuals who may not be using Telus, but are communicating
with an individual who is. Despite the lawful authorization of
the mechanism in this way, Parliament could not have envisioned
the unique practices employed by a single service provider in
this manner, and the use of the statute to benefit from it as a
result.</p>
<p>These problems were highlighted by Justice Abella’s dissent,</p>
<blockquote>
<p>[105] <span style="text-decoration: underline;">The only
difference between <i>TELUS</i>, dealing with prospective
text messages, and this case, dealing with historical text
messages, is the timing of the state’s request for
authorization</span>. This was reinforced by the intervener
Criminal Lawyers’ Association of Ontario in its factum where
it said that, “[t]echnologically speaking, [<i>TELUS</i>] and
[Mr. Jones’] case are identical: a private communication is
made, it is then stored on the company’s computer, and then
the state acquires it” (para. 16). If the term “intercept” in <a
class="reflex2-link"
href="https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec183_smooth"
moz-do-not-send="true">s. 183</a> is interpreted in the
context of the broader Part VI scheme and the purpose that it
is meant to serve, namely, to prevent the state acquisition of
private communications without lawful authorization and to
protect the privacy interests inherent in the content of
private communications, then the Part VI protections should
not fluctuate with the timing of the state’s interception of a
private communication. As noted in <i>TELUS</i>,<span
style="text-decoration: underline;"> interpreting the phrase
“intercept[ion] [of] a private communication” must “focus on
the acquisition of informational content and the
individual’s expectation of privacy at the time the
communication was made”</span> (para. 36).<br>
[emphasis added]</p>
</blockquote>
<p>Highlighting the timing as the only distinction between a Part
VI authorization and a Production Order would have the effect of
allowing law enforcement to essentially create repeated
Production Orders over a period of time that would create a
record similar to that of a Part VI authorization. Although it
would not have the benefit of being able to prevent crimes from
occurring, it would create the type of evidentiary record that
would have a significant effect on providing incriminating
statements against an accused, thereby having a significant
impact on the <em>Charter</em>-protected interests of the
accused (the 2nd step of the 24(2) analysis under <em>Grant</em>).</p>
<p>More importantly, the evidence provided here did not originate
from any legal distinctions between a Part VI authorization or a
Production Order, but the unusual practices of a particular
company,</p>
<blockquote>
<p>[113] In this case, the police obtained several Production
Orders pursuant to <a class="reflex2-link"
href="https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec487.012_smooth"
moz-do-not-send="true">s. 487.012</a> of the <i><a
class="reflex2-link"
href="https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html"
moz-do-not-send="true">Criminal Code</a></i> directed at
the service providers Bell, Rogers and Telus. Only Telus
stored the content of incoming and outgoing text messages for
a period of time after the messages were sent and received. No
text messages were obtained from accounts held with the other
service providers. <span style="text-decoration: underline;">Telus’
unique storage practices, rather than the underlying
principles in Part VI, led to the production of copies of
historical text messages from the targeted Telus account</span>,
and the loss of Mr. Jones’ privacy protections available under
Part VI of the <i><a class="reflex2-link"
href="https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html"
moz-do-not-send="true">Criminal Code</a></i>. Again,<span
style="text-decoration: underline;"> the applicability of
Part VI should depend on the substance of what the
investigative technique seeks to access, not on the timing
of when access is sought, or on the vagaries of the service
provider’s technological practices. </span></p>
<p>[emphasis added]</p>
</blockquote>
<p>Justice Abella cited the evolution of shifting technology that
has resulted in corresponding jurisprudence that attempts to
keep up with the impact of these technological changes on the
constitutional rights of an accused.</p>
<p>The Court in <em>Marakah</em> attempted to protect these
interests by prioritizing the private nature of text message
information, and the informational content relating to the
biographical core of the individual, rather than weighing the
location of the search too heavily,</p>
<blockquote>
<p>[37] Electronic conversations, in sum, are capable of
revealing a great deal of personal information. Preservation
of a “zone of privacy” in which personal information is safe
from state intrusion is the very purpose of <a
class="reflex2-link"
href="https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec8_smooth"
moz-do-not-send="true">s. 8</a> of the <i><a
class="reflex2-link"
href="https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html"
moz-do-not-send="true">Charter</a></i>: see <i>Patrick</i>,
at para. 77, per Abella J. As the foregoing examples
illustrate, this zone of privacy extends beyond one’s own
mobile device; it can include the electronic conversations in
which one shares private information with others. It is
reasonable to expect these private interactions — and not just
the contents of a particular cell phone at a particular point
in time — to remain private.</p>
</blockquote>
<p>However, this same emphasis on the private nature of the
information does not feature as prominently in evaluating the
reasonableness of how law enforcement can infringe on this zone
of privacy through a search. The unreasonableness of the search
was not disputed in <em>Marakah</em>, where text messages were
used from a co-accused’s phone against him.</p>
<p>Instead, the majority in <em>Marakah </em>anticipate at para
53 “that the justice system [will] adapt to the challenges of
recognizing that some text message conversations may engage <a
class="reflex2-link"
href="https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec8_smooth"
moz-do-not-send="true">s. 8</a> of the <i><a
class="reflex2-link"
href="https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html"
moz-do-not-send="true">Charter,</a></i>” even as societal
interests in protecting privacy interests outweigh the state’s
interest in effective law enforcement.</p>
<p>While this case law continues to develop, the jurisprudential
gap between Production Orders and Part VI authorizations, in
light of changing technological practices, may also warrant a
review of these provisions by the legislature to better regulate
the state’s discretion to record and transmit our words.</p>
<div id="attachment_89225" style="width: 610px" class="wp-caption
aligncenter">{picture was here}<br>
<p class="wp-caption-text">(From Left:) Darryl Singler, Omar
Ha-Redeye, Jon Rinaldi, Samatha Biglou, and Tara Brun, judging
the 2018 Lions Cup on R. v. Jones, 2017, on June 24, 2018.</p>
</div>
<p> </p>
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