Appeal Watch: Telus Communications Company v. Her Majesty the Queen

On October 15, 2012, the Supreme Court of Canada heard an appeal by Telus Communications to quash a General Warrant and Assistance Order to produce daily records of all text messages sent and received by two Telus subscribers in connection with a police investigation.

The main issue in this case is whether a General Warrant ordering the daily production of text messages constitutes the interception of private communications – an order that would require the police to apply for a wiretap authorization instead.

Facts

The General Warrant lists two Telus subscribers and their telephone numbers. The warrant required Telus to provide to the police all text messages sent to or from the two Telus subscribers, as well as information to identify the individuals who were receiving or sending messages to the subscribers on a scheduled daily basis for a future two-week period.

The police would not be receiving the text messages in real time. Rather, Telus was required to produce text messages from the previous day up to the morning the report would be sent.

At the Ontario Superior Court of Justice, Telus explained that all text messages – when sent and received – are copied and stored for up to 30 days in an electronic database owned by the company.

The Crown argued that the General Warrant was valid because the police were not intercepting private communications but were requiring the reproduction of text messages that are stored in Telus’ database.

Telus argued that the General Warrant intercepts private communications and that the police should have sought a wiretap authorization. In further argument, Telus submitted that allowing General Warrants to be used in this way would impose an undue financial burden on the company.

Ontario Superior Court Judgment

Justice Sproat ruled that the General Warrant did not authorize the interception of private communications because “interception” means the real-time capture of such communications. Because the text messages under the General Warrant were being produced after they had been sent and received, the police were not required to apply for a wiretap authorization.

As for the argument that it would be an undue financial burden on Telus, Justice Sproat commented that the expense in providing information for a police investigation is neither unanticipated nor unpredictable and that Telus should be “reasonably prepared” to shoulder such costs.

Text Messaging: Subject to Wiretap or General Warrant?

Text messaging has become a ubiquitous form of communication and has raised new legal issues for police investigations and privacy. The storage of these communications in a third-party database presents a major issue: because they are “stored” and no longer “in transit” for communication, is this no longer an interception? Or, because of how text messaging works, should storage be considered a component of transmitting these communications and thus subject to wiretap authorizations and procedures? We’ll find out from the Supreme Court soon enough.