The Information Age - Harrison Gray

The age of smartphones has brought many improvements to the average person throughout Canada. The ability to have a wealth of information in your pocket, at any given time, has allowed for improvements throughout the day-to-day life of many across the country. The answers to everyday questions have become readily accessible and have allowed efficiency in dealing with everyday problems; this is remarkable when one considers the relative difficulty people faced with something as simple as directions or contacting someone merely a few decades ago. This technology has continually evolved quickly and in many ways. Everything from directions to the ability to count calories or monitor your heart rate has become almost taken for granted. What these technological innovations have also allowed is the collection of data in a way that was almost unimaginable in recent decades. This data has become one of the most valued resources of the internet age. Long gone are the days of the gold rush; we have entered the days of the rush for data. Private industry has discovered that data is worth its weight in gold, and private companies have acted accordingly, maximizing their profits but harvesting and selling data. How this online information can be accessed by law enforcement has thus become a pressing issue for Canadian jurisprudence to address. The individual’s right to privacy is becoming diminished regardless of the law, but nonetheless, the law must seek to address these changes to individual’s privacy that have occurred because of technology.

Search and Seizure of Cell Phones and Internet Data

The Supreme Court of Canada laid out what is necessary when conducting the seizure of a cell phone in the 2014 case of R v Fearon.[1]Part of what the Supreme Court said in this case was that there is an inherent right to digital privacy information, more than other searches that occur incident to arrest. Although the majority did view this right as limited, there was a dissenting opinion that this right should be protected, as cell phones have information that reveals the “inner private lives” of the owner.[2] The reasoning of the dissent in Fearon addresses how truly intimate the information contained on our digital devices really is. While Fearon addresses the physical confiscation of a phone, it also discusses an important concept that will continually arise in the digital age; how will the courts balance the interests of the state and the interests of the individual to their digital privacy rights? Although Fearon has given legal guidance for what must occur in the search and seizure of a cell phone incident to arrest, it does not address how this applies to similar data contained not within the personal cell phone, but instead existing on another database or electronic device.

The Court considered the issue of privacy rights of the individual regarding a message that was on another’s cell phone in the 2017 case of R v Marakah.[3]The Court here stated that even on another’s device, it is reasonable to have an expectation of privacy when another person has access to the information. This is intriguing reasoning by the Court, as this can be applied broadly in the context of many different forms of online information. The Court did state, however, that the facts of the case must be considered when applying this type of reasoning and that it may not apply to all situations.[4] Although Marakah is a good example of how digital privacy rights exist not just within the physical cell phone, but also in other places where that information may also exist, it does not go far enough to determine a situation such as a private company with access to the data.

An illustration of the requirements that are necessary to acquire the data held by private companies is seen in the case of R v TELUS Communications in 2013. Telus was intercepting messages for their own administrative purposes.[5] The Court in this case was discussing the issue of general warrants and whether that was acceptable because the police should have obtained a wire-tap warrant. The reasoning in this case determined through prior case law, and provisions in the criminal code, that this was not an acceptable means of acquiring the data Telus possessed. Telus nonetheless had been intercepting these messages and storing them. So, while the Court did in a way protect the digital privacy rights of the individual, this case shows how, in the current technological era we are in, private companies will be asked to surrender data that they have obtained by law enforcement. The data collected by Telus was legal, and other companies will also be able to legally intercept data resulting from the digital services they provide.

While these cases provide some precedent for the protection of digital privacy rights for the individual, it is far from a strong level of protection. What the Common Law has yet to fully consider is how the technology of the future will be able to have increasingly more detailed information about the individual. Since the Supreme Court of Canada has put limits on the digital privacy rights of the individual, the balance between individual privacy and the interest of the state will inevitably shift in the direction of the state. Yes, it would be a little premature to say that allowing text messages between two parties into evidence will lead to the state being able to acquire unlimited information on the accused; it would also be naïve to say that technological advances will not lead to more information potentially being acquired by the state. How this data may be used by law enforcement in the future needs to be evaluated and analyzed further.

Modern Police Techniques using Technology

Advocates for the rights of individual privacy over the state will point to modern technology potentially being used to invade the privacy of the individual in favour of the state; however, others will argue that using this array of digital information will allow for crimes to be solved by police that otherwise may not have been solved. Such a situation appeared to have happened in 2018 in Arizona, when the tech giant Google surrendered location information to the police to help them solve a murder.[6] Using this new location tracking technology, the police were able to determine that 22-year-old Jorge Molina was signed into his Google account and using a device at the scene of the crime when it was being committed. Police were able to arrest Mr. Molina, and it was widely seen as a success by the police and their ability to solve crimes using technology; except, it was actually the complete opposite. Mr. Molina was not the murderer the police had been looking for. What had happened was Google had provided information regarding Google accounts in the area in use at the time of the murder, leading to the mistaken arrest of Mr. Molina. While American law differs from Canadian law in many aspects, what is the same is the control of incredible amounts of data by gigantic technological companies. If the ability of tech giants to collect data can be used by police in unreliable ways, what good is it to us, as a society, to allow this infringement on privacy to be allowed? While the Supreme Court of Canada has sought to protect the privacy rights of individuals, they have also allowed a factual analysis to be done that could lead to this right being quashed by the interest of the state, especially when attempting to solve heinous crimes. Society would be blind to not see future situations occurring where novel digital information will be used. When these companies have access to data like location, communications, internet search history, and many other types of personal information such as heart rate, it opens a whole array of potential scenarios where this information could be released to the police if they obtain the proper warrant.

Future of Privacy

With the advancement in technology outpacing the ability of the law to deal with the novel legal situations they will bring about, the current state of privacy rights is simply not sufficient in protecting the individual against the state. While the Supreme Court has outlined a process for what is required to infringe on these rights, the changes in technology will only serve to tip the balance between individuals and the state increasingly towards the state. With great power comes great responsibility, and the power of technology needs to be responsibly balanced with enhanced privacy rights for individuals against the state for the betterment of the legal system and for society.

[1] R v Fearon, 2014 SCC 77, [2014] SCR 621. [2] Ibid at para 101. [3] R v Marakah, 2017 SCC 59. [4] Ibid at para 55. [5] R v TELUS Communications Co, 2013 SCC 16. [6] Meg O’Connor, “Avondale Man Sues After Google Data Leads to Wrongful Arrest for Murder” (16 January 2020), online: Phoenix New Times <www.phoenixnewtimes.com/news/google-geofence-location-data-avondale-wrongful-arrest-molina-gaeta-11426374>.