The Supreme Court of Canada, in R. v. TELUS Communications Co., has ruled that text messages are private communications and may therefore give rise to an expectation of privacy.
In March 2010, the Owen Sound Police Service obtained a general warrant which required TELUS to provide the police with copies of any text messages sent or received by two particular subscribers contained on company’s server. TELUS brought an application challenging the warrant, arguing that the messages were private communications and therefore the police were obliged to obtain special authorization.
The Supreme Court concluded that text messages are simply electronic conversations that are akin to voice conversations, the only difference being the transmission process. As such, the text messages were to be treated in the same manner as private communications, even where stored on a service provider’s computer. Police were therefore required to obtain the proper authorization to conduct a wiretap.
While involving the exercise of police powers in a criminal law context, this case follows a recent trend by Canada’s highest courts towards a broader recognition of a general expectation of privacy. Indeed, legitimate questions arise about how far an employee’s reasonable expectations of privacy might extend while using mobile devices provided by their employer.
If nothing else, this case underscores the importance of implementing and consistently applying comprehensive policies outlining an employer’s expectations surrounding company laptops and mobile devices, including their proper use and the extent to which the employee should expect communications will remain private.
If you have any questions about workplace privacy issues, or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer.
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