Textual Privacy and Mobile Information

The Supreme Court of Canada’s decision in R v Marakah attempted to resolve the privacy status of text messages under section 8 of the Charter, but offered an incomplete solution because it failed to address the normative basis for protecting such communications. Despite the complexity of section 8 analysis (which itself is a product of multiple and inconsistent tests used to answer the same questions), the privacy of text messages allows for a relatively simple analysis. Normatively speaking, letters, email, and text messages all attract the same basic privacy interest, and should be treated analogously. However, if the police have objective grounds for believing that particular individuals have been exchanging text messages in furtherance of a crime, reasonable suspicion may justify a limited search, aimed solely at obtaining those messages. This approach protects the public from random and baseless police searches while giving the police access to these communications when there are objective grounds to believe they will disclose evidence of crime.