Shared Computers and Digital Privacy for Low-Income Individuals - Eric Epp
In an ideal world, the law is applied equally to every person in society. Of course, this is often not the case, as people’s individual circumstances change the way that a case is analyzed and applied. People who earn a low income are disproportionately burdened by legal problems compared to individuals higher on the socioeconomic spectrum.[1] In criminal law, low-income individuals are both more likely to become involved with the law in some way and are more likely to be denied bail, be detained when arrested, plead guilty, and struggle upon reintegration into society.[2] For the law to be applied justly, assuming the perspective of a low-income person is crucial, especially when Charter rights are concerned. This is one reason the SCC decision in R v Reeves is important for protecting the digital privacy rights of people who share computers.
Reeves is a 2018 SCC decision in which the privacy rights of individuals who share personal computers were analyzed, particularly whether third parties who share a computer can waive another person’s rights due to the existence of a diminished level of privacy. In Reeves, a police officer seized a shared computer, due to Reeves’ common-law wife having reported finding child pornography, without a warrant but with the consent of his common-law wife. The issue in the case was whether the officer only needed the consent of Reeves’s wife to seize the computer, and the information contained in it, from their home because the computer was shared between them.[3] Reeves argued that this affronted his rights under s. 8 of Charter of Rights and Freedoms to not be subject to unreasonable searches and seizures; generally, this refers to searches without a warrant.
Ultimately, the SCC found that Reeves’ section 8 rights were violated by the seizure. Despite having a diminished reasonable expectation of privacy in a shared computer, the Court found that simply sharing a computer with someone does not waive the “Charter protection from state interference in our private lives.”[4] This was the prudent decision for many reasons; chief was that much of people’s entire lives is now stored in some way within their computers and digital devices, but amongst the most important is the protection of the privacy of those who may be sharing homes or computers amongst one another. Often, this is the case for people in low-income circumstances.
The Criminal Lawyers’ Association (Ontario) rightly pointed out, as an intervener in Reeves, that an interpretation of section 8 which would allow third party consent to take shared computers would disproportionately impact those who are living in low-income situations.[5] A ruling in this direction would negatively impact these individuals, who are already more likely to engage with and navigate the issues associated with a low socioeconomic position and potential criminal scrutiny, to further have their rights taken away from them.
Unfortunately, by the letter of the law, individuals who share a computer do start with a lower expectation of privacy than individuals who do not. The SCC acknowledges this as an unfortunate reality. However, they are careful to distinguish between the “taking” of a shared device and the giving or discussion of information that a third party may have seen with the police. This situation was similarly dealt with in R v Cole in 2012, but in an employer context. In this case, Cole had permission to use an employer provided laptop for his personal use in addition to work use. During maintenance by a technician, a folder of child pornography was discovered. The computer was subsequently seized by the principal of the school and the information searched by the police without a warrant.[6] The SCC affirmed that although the school had the legal right to seize and search the computer, this “did not furnish the police with the same power.”[7] This is consistent with Justice Dickson’s interpretation of section 8 as expressed in Hunter v Southam that section 8 of the Charter is meant to “constrain governmental action inconsistent with those rights and freedoms.”[8] The reality is that having to share a computer, or anything else, with another person does create a diminished expectation of privacy from non-state actors. This is why the decision in Reeves is so important for those people who are forced to do so. While this distinguishment may seem arbitrary, this acknowledges the power imbalance implicit to any interaction between an individual and the police.
Justice Côté, in her dissent, argued that this difference presented an “unworkable doctrine” to express the boundaries of such a distinction.[9] Speaking for the majority, Justice Karakatsanis recognized this distinction as well.[10] Once again, the majority got this decision correct. What Justice Côté failed to consider is the power imbalance that is present in a situation where the police are asking a person to consent to them taking their computers. It is easy to see any myriad of reasons to explain why a person may feel intimidated into giving consent in this type of situation.
In Le, the SCC listed “age, race, life experience, and other personal characteristics” as factors that could impact the power imbalance of a person and the police.[11] One can easily see how a low income can factor into this list, as it makes a person more vulnerable to police encounters. This power imbalance is especially important when the person who is giving consent would be waiving the privacy rights of someone other than themselves and would be reasonably assumed to be less likely to assert the right to not give consent if it does not seem to affect them. It is reasonable that, as with sending a text message, one may be assumed to be exposed to the risk that the co-user of a computer may take said computer voluntarily to the police, but the principles laid down in Hunter—that section 8 is a shield against unwarranted state invasions into privacy—support that the co-user cannot be asked to consent to the taking of a jointly owned computer by the police.
The SCC has rightfully kept the bar for the state to gain access to digital information high. Computers contain most of the information about any particular person that could possibly be known about them. The Court affirmed this in Spencer when they determined that a request to Shaw, an internet service provider, for the name and address of the person connected to a particular IP address constituted a search.[12] An IP address identified with an individual can reveal many things about a person which, improperly accessed, can infringe on the biographical core of an individual’s privacy interests. As the SCC said in Morelli, “it is difficult to imagine a search more intrusive, extensive, or invasive of one’s privacy than the search and seizure of a personal computer.”[13] Accordingly, it must be a high bar to clear before seizing the information or the ability to control that information.
Unfortunately, the law equally applied to all of society (in the case of section 8) would mean that those who are forced to live a lower income lifestyle will not have access to a similar level of privacy as a person with a high income, who is more likely to have individual devices. As this has been interpreted, shared device situations, more common to lower income households, will simply not start with the same reasonable expectation of privacy as a high-income single unit household. Because of this, a shared computer must be held to even greater scrutiny by the courts such that the law will not be unequally doled out amongst Canadians. The default position for a shared computer must be that, without the consent of all users, a search warrant will be necessary.
If section 8 is to be read correctly, a person who is forced because of socioeconomic reasons to be sharing a computer has not given up their right to privacy to the others using the computer. To apply the law as justly as possible, the premium on gaining access to digital information must be high, as the SCC has continued to hold. It is specious reasoning by Justice Côté to say that seizing the computer, but not gaining access to the information until a warrant is gained, is fine in this context.[14] The majority of the SCC is right in saying property is certainly not the issue, as the reason the computer was seized was to access the information within it.[15]
The divide between high-income and low-income people in how many would be sharing a computer with another person means any relaxation in the right to control one’s digital information would, in effect, create a two-tiered system of justice in this realm. While the law is difficult to apply equally to people in vastly different socioeconomic positions, the goal should be for as just an outcome as possible. Third party consent to the taking of a computer cannot exist in a society where the law is applied justly.
[1] Ab Currie, “Legal Problems and the Poor” (September 24 2015), online: Slaw: Canada’s Online Legal Magazine <www.slaw.ca/2015/09/24/legal-problems-and-the-poor/>. [2] “The Counter Point” (accessed 3 December 2021), online (pdf): John Howard Society of Ontario <johnhoward.on.ca/wp-content/uploads/2014/09/counter-point-1-poverty-and-crime-is-there-a-connection.pdf>. [3] R v Reeves, 2018 SCC 56 at para 1 [Reeves]. [4] Ibid at para 44. [5] Reeves, supra note 3 at para 44. [6] R v Cole, 2012 SCC 53 at para 5. [7] Ibid at para 10. [8] Richard Jochelson & David Ireland, Privacy in Peril: Hunter v Southam and the Drift from Reasonable Search Protections (Vancouver: UBC Press, 2019) at 14, citing Hunter v Southam [1984] 2 SCR 145 at paras 156-157, 33 Alta LR (2d) 193 [emphasis added]. [9] Reeves, supra note 3 at para 129. [10] Ibid at para 43. [11] R v Le, 2019 SCC 34 at 702. [12] R v Spencer, 2014 SCC 43 at para 66. [13] R v Morelli, 2010 SCC 8 at para 2. [14] Reeves, supra note 3 at paras 123-124. [15] Ibid atparas 30-31.
The views and opinions expressed in the blogs are the views of their authors, and do not represent the views of the Faculty of Law, or the University of Manitoba. Academic Members of the University of Manitoba are entitled to academic freedom in the context of a respectful working and learning environment.
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