Law must adapt with technology

Apr 8, 2013 By Matthew Friedberg
Clarity in Canadian privacy law is essential for citizens, especially as technology rapidly progresses, says Toronto criminal lawyer Matthew Friedberg.

“Any clarity and predictability with respect to Canadians’ rights to privacy is a welcome development in our law,” says Friedberg, referring to a recent Supreme Court ruling that says police seeking to intercept cell phone text messages must do so under wiretap authorization, not just a general search warrant.

In a 5-2 split decision, the high court ruled in favour of telecommunications giant Telus, one of the only Internet service providers in Canada to routinely store copies of all its subscribers’ texts in company databases for 30 days, the Toronto Star reports. Read Toronto Star 

The case involved the Owen Sound police, who obtained a general search warrant to force Telus to produce copies of texts from two Telus subscribers, and reveal to whom the messages were sent during the period from March 18 to March 30, 2010, the report says. Read R. v. Telus Communications Co.

“It’s an extremely positive ruling,” says Friedberg. “It brings some reassurance to what every Canadian probably implicitly expected of their electronic communication. I think the average Canadian on the street expected that their text messages would have been protected with the same level of privacy afforded to their phone conversations.

“The ruling has reinforced the average Canadian’s reasonable belief of privacy in the first place.”

There’s no reason for a lower level of privacy to be applied to text messages, says Friedberg, noting “one is just a written word and one is a spoken word.”

The case is an example of how the courts are addressing issues that arise with the quick-moving digital age, he says.

“The problem with the law is it’s an extremely reactive discipline. Laws are always reacting to facts that find themselves before the courts or Parliaments, and it’s up to the courts to interpret them,” he says.

“The law has always lagged behind technology and this problem has been aggravated in the last 10 years as technology has moved at an exponential pace.”

Friedberg adds: “It’s very important that the courts deal with these issues.”