Police Powers in the Metaverse: Why the Charter’s Section 8 Will Have to Change - N.J. Peterman

Chief Justice Dickson famously advised in Hunter v Southam that section 8 of the Charter protects “people, not places.”[1] With the concept of the metaverse on the rise, how will this apply to the internet as we know it? Like the internet, the emergence of the metaverse will have a profound impact on how our nation’s judiciary interprets s. 8 of the Charter, the right which provides everyone “to be secure against unreasonable search or seizure.”[2] Standing as more of a concept than a place, at least currently, the metaverse is still very much an enigmatic idea. In succinct terms, though, it can perhaps be described as an “alternate immersive 3D reality, where every part of your life could be replicated in a digital universe.”[3] As well, people participating in this brave new world may be able to interact through digital avatars, not unlike popular video games among the likes of Fortnite, Second Life, and Roblox.[4]

The metaverse’s popularity boomed last October after Facebook announced its intention to rebrand as Meta Platforms Inc. (“Meta”). Today, Meta is a parent company to subsidiaries, including Facebook, Instagram, and WhatsApp.[5] The concept will continue to take shape as more major corporations start to invest in the technology with real-world dollars, but excitement for the metaverse is already here. Companies have already begun shaping their corporate structures to dedicate entire divisions solely to immersive technology, some of which are being headed by what are known as “[C]hief [M]etaverse [O]fficer[s].”[6]

Is the Metaverse Different than the Internet?

The dawn of the internet spurred a radical shift in the interpretation of section 8, which was gradually developed through landmark cases such as Spencer, Cole, Vu, and Marakah. These decisions became guiding precedents relied upon by justices hailing from all levels of the Canadian court system and helped courts determine whether an individual had a reasonable expectation of privacy in some aspect of digital life. However, there is a complicating factor that Canadian justices will have to consider in the coming years: the metaverse, an evolution of the internet we know today, is not the same internet that was considered in past Supreme Court decisions. As a result, how relevant will such cases be once the metaverse storms the mainstream audience?

Biographical Core of Personal Information

Spencer tells us that an Internet Protocol (“IP”) address carries a reasonable expectation of privacy,[7] due in part because “anonymous [i]nternet activity engages a high level of informational privacy.”[8] Will avatars in the metaverse be considered the same way by justices? On the one hand, because they can be used by an individual to portray an outlandish, fantastical version of themselves, avatars seem to be an extension of the “anonymous [i]nternet activity” defined by the Supreme Court in Spencer. [9] However, individuals can also use avatars to mirror their real-world lives, so much so that an individual’s avatar has the potential to be nearly indistinguishable from their true identity. In Cole, the Supreme Court stated that “[t]he closer the subject matter of the alleged search lies to the biographical core of personal information, the more this factor will favour a reasonable expectation of privacy.”[10] It will be interesting to see how courts handle the question of whether a reasonable expectation of privacy exists based on how an accused portrayed themselves through their avatar in the metaverse.

Warrants to Search the Metaverse

Will police officers be entitled to search an individual’s corner of the metaverse, so long as they have a warrant to search their computer? Without a definable geographic location, it’s unclear whether the metaverse should be protected as a separate entity. The 2013 Supreme Court decision of Vu laid down the rule that “specific prior authorization is needed to search individuals’ computers and similar devices.”[11] Arguably, a piece of technology used to access features of the metaverse may qualify as one of these “similar devices.”[12] For example, if an individual was committing criminal acts in the metaverse by means of a virtual reality headset, the state may not be free and clear to investigate that individual’s “metaversal” activity; a separate and specific warrant to search the individual’s virtual reality headset may have to be required.

Is There a Reasonable Expectation of Privacy Within the Metaverse?

Consider, as well, the case of Marakah, in which the Supreme Court determined that the accused had, based on the totality of the circumstances, a reasonable expectation of privacy in text messages he had sent to an accomplice’s cell phone.[13] Justices may struggle to determine whether virtual chat messages sent through devices in the metaverse can be afforded a similar, reasonable expectation of privacy as well. Suppose that messages are spoken through a headset from one person to another, within the metaverse; should these types of conversations be afforded the same level of expectation of privacy as the interaction in Marakah? The Supreme Court stated in Marakah that an “interconnected web of devices and servers creates an electronic world of digital communication that . . . is every bit as real as physical space.”[14] Albeit the fact that McLachlin C.J. was writing with regard to the modern internet we know and use today, her point holds true for the metaverse as well. Once adopted en masse, the metaverse could become a place to have conversations with loved ones, conduct business meetings, enjoy movies, and more; “just as we might use a room in a home or an office to talk behind closed doors.”[15] If the Supreme Court had the foresight to acknowledge that the internet could be as tangible as described, is recognizing the metaverse’s impact on society such a stretch?

The panel of justices went on further to impliedly add that other public internet realms may not be as deserving of a reasonable expectation of privacy as others; in this case, the accused’s text messages garnered a reasonable expectation, but congested internet message boards and social media chat rooms may not.[16]

Where will conversations in the metaverse lie given these parameters? The answer, I think, is dependent on where in the metaverse the conversation is being held. Similar to the internet today, virtual interactions in the metaverse can be as public as a live concert,[17] or as private as a one-to-one conversation. This may lead to the conclusion that two individuals having a private conversation within the metaverse have as great an expectation of privacy as two individuals chatting in a kitchen in the real world. Of course, there should be exceptions if a conversation in a private room in the metaverse is to be considered as private as a conversation in a real, physical home. For one, child luring schemes should have a diminished expectation of privacy. Brown J. put this succinctly in Mills, stating that “adults cannot reasonably expect privacy online with children they do not know.”[18]

Conclusion

What’s this all mean for the Canadian legal system? It is too early to say for sure, but it is obvious that a cultural shift to immersive technology is underway. Given the Supreme Court’s declaration that the Charter is a “purposive document,”[19] it is also clear that the law will have to make room for the inevitable and complex litigation it will spawn. With a lot of bugs and other technological challenges still to overcome, the metaverse is, arguably, not yet a case topic that we will see appealed to the Supreme Court. However, “[a]s social behaviour changes and lives are lived increasingly online or leaving traceable digital breadcrumbs . . . investigation of crime will engage more . . . technological tools and digital landscapes.”[20] This might mean cybercriminals using digital wallets to launder cryptocurrency, drug lords using a digital avatar to facilitate deals taking place in the real world, and more. While it remains unclear how exactly police powers will change in light of novel nefarious activities, it is obvious that the Canadian judicial system will have to respond, in part by adapting s. 8 of the Charter. Lots of uncertainty remains, but one thing that is clear is that Canadians will again need to rely upon our nation’s judiciary to “draw reasonable boundaries in an uncertain field.”[21]

[1]Hunter v Southam [1984] 2 SCR 145 at para 159, 33 Alta LR (2d) 193 [Hunter]; Katz v United States, 389 US 347 (1967) [Katz]. [2]Canadian Charter of Rights and Freedoms, s 8, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. [3] David E Brennan, Sushil Kuner & Danielle Hudspith, “What is the metaverse” (12 November 2021), online: Gowling WLG <https://gowlingwlg.com/en/insights-resources/articles/2021/what-is-the-metaverse/> [perma.cc/U6KW-R6WJ]. [4] Edd Gent, “What Can the Metaverse Learn From Second Life?” (29 November 2021), online: Spectrum <spectrum.ieee.org/metaverse-second-life> [perma.cc/82S8-TYG4]. [5] “Introducing Meta: A Social Technology Company” (28 October 2021), online: Meta<about.fb.com/news/2021/10/facebook-company-is-now-meta/> [perma.cc/669D-FMFB]. [6] Sohini Bagchi, “New tech is redefining CMO title to include Metaverse” (5 April 2022), online: Mint <www.livemint.com/technology/tech-news/new-tech-is-redefining-cmo-title-to-include-metaverse-11649135836198.html> [perma.cc/AQ3Z-MCZK]. [7]R v Spencer, 2014 SCC 43 at para 66. [8]Ibid at para 51. [9]Ibid. [10]R v Cole, 2012 SCC 53 at para 46. [11] Jeffrey Hernaez, “R v Vu: The SCC Rules that Computers Require Distinctive Treatment under Section 8 of the Charter” (6 February 2014), online: The Court <www.thecourt.ca/r-v-vu-the-scc-rules-that-computers-require-distinctive-treatment-under-section-8-of-the-charter/> [perma.cc/7TTY-QP4T]. [12]Ibid. [13]R v Marakah, 2017 SCC 59 at para 13. [14]Ibid at para 28. [15]Ibid. [16]Ibid at para 55. [17] Rob LeDonne, “‘Limits are non-existent in the metaverse!’ Video game concerts become big business”, online: The Guardian <www.theguardian.com/music/2021/aug/07/no-limits-in-the-metaverse-video-game-concerts-big-business> [perma.cc/FN95-XU67]. [18]R v Mills, 2019 SCC 22 at para 23. [19]Hunter, supra note 1 at para 146. [20] Susan Magotiaux, “Out of Sync: Section 8 and Technological Advancement in Supreme Court Jurisprudence” (2015) 71:19 SCLR at 502-503. [21]Ibid at 503.