Big Brother needs court to view texts

Police need special wiretap orders, not just ordinary search warrants, to intercept cellphone text messages as part of criminal investigations, the Supreme Court of Canada ruled Wednesday.

In a 5-2 split decision, the court sided with wireless carrier Telus (TSX:T) by agreeing that text messaging is essentially another form of conversation and should receive the same protection to which private communications are entitled under the Criminal Code.

"Text messaging is, in essence, an electronic conversation," Justice Rosalie Abella wrote for the majority of the court. "Technical differences inherent in new technology should not determine the scope of protection afforded to private communications.

"The only practical difference between text messaging and traditional voice communications is the transmission process. This distinction should not take text messages outside the protection to which private communications are entitled."

The case arose out of Owen Sound, Ont., after the Ontario Superior Court granted police a general warrant that ordered Telus to turn over any text messages sent or received by two of its customers between March 18 and March 30, 2010. The warrant also compelled Telus to provide police with copies of the customers' texts every day for the following two weeks.

Unlike many other wireless carriers, Telus stores copies of all text messages sent or received by its subscribers in a computer database for 30 days.

The company argued that even though copies of the messages were kept in a database, police would still be "intercepting" the communication by seizing the texts and would therefore need to get a wiretap order, which is more difficult to obtain than a general warrant, because of privacy provisions in the Criminal Code.

The federal Crown said that would clog the courts with thousands of wiretap applications each year.

Telus lost its initial bid to quash the warrant and appealed to the Supreme Court. The company's lawyers argued police need wiretap authorization under the Criminal Code to seize private text messages.

Canadians sent and receive billions of text messages each year, according to industry figures. Wednesday's ruling effectively sets new rules for how the authorities can access electronic conversations.

"It clarifies that the courts will approach new communications technology with the same eye towards protecting privacy as they do with old technology," Telus spokesman Shawn Hall said in a telephone interview.

"This will go a long way towards protecting Canadians' privacy, but still provide police access to communications with an appropriate degree of judicial oversight."

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