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Top court debates police powers for text message eavesdropping

OTTAWA – Canada’s top judges pushed the Crown on Monday to explain why giving police the ability to eavesdrop on text messages with a general warrant wouldn’t be handing them too much power.

Supreme Court Chief Justice Beverley McLachlin asked Crown attorney Croft Michaelson how long a surveillance leash police should be allowed in asking service providers like Telus to release a customer’s future text messages to them.

McLachlin said it’s “intuitive” that allowing law enforcement to gain access to future communications is a greater infringement on privacy than giving them access to the records of past texts.

“It’s a concern for me certainly,” she said, later adding: “It does feel different to give police future powers and then to say: ‘You can go and look at what’s (already) there.'”

The panel of seven judges decided to hear arguments on the powers police have to snoop on text messages after an Ontario judge granted a general warrant that called for Telus to give law enforcement the texts of two of its customers over a future two-week period.

Telus argues that if police want to acquire the content of text messages in near real time, they should get an authorization to intercept, as they do when they want to intercept phone conversations — a wiretap.

Telus’ lawyer, Scott Hutchison, said the company has been receiving more such warrants from police since 2010.

“This is a wiretap dressed up as a general warrant,” he argued, adding the criminal code governing interceptions — written in 1974 — hasn’t kept up with the way people communicate today.

The Crown argues a general warrant should be enough because police are essentially gathering a record of communications made over a 24-hour period and not intercepting them in real time.

In April, the Supreme Court struck down a law that allows for emergency wiretaps without a warrant.

The judges’ main concern was that people whose communications are intercepted under the provision can be kept in the dark about the wiretap.

McLachlin and others raised similar concerns Monday. If police gain access to texts under a general warrant, those intercepted will never learn their communications had been tapped — which wouldn’t be the case under wiretap laws.