About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

56 Alta. L. Rev. 1 (2018-2019)

handle is hein.journals/alblr56 and id is 1 raw text is: 


             CONSENT SEARCHES FOR ELECTRONIC TEXT COMMUNICATIONS                            1


                             CONSENT SEARCHES FOR
                    ELECTRONIC TEXT COMMUNICATIONS:
                         ESCAPING THE ZERO-SUM TRAP


                                     STEVEN PENNEY*

        In R. v. Marakah. a majority of the Supreme Court of Canada decided that senders of
        electronic text communications maintain a reasonable expectation of privacy over their
        messages even after they are copied to recipients' devices. The dissenters argued, in
        contrast, that any such expectation is objectively unreasonable given senders' inability to
        control the messages after delivery. The Supreme Court did not settle the question, however,
        of whether this expectation can be defeated by a recipient's voluntary decision to allow
        police to search his or her own device. Indeed, each side intimated that such a consentwould
        be difficult, if not impossible, to obtain.

        This article argues, nonetheless, that courts can and should use consent doctrine to avoid
        the zero-sum  model of section 8 adjudication that characterizes the majority and
        dissenting reasons in Marakalh Properly interpreted, that doctrinepreserves Marakah's core
        holding  that senders do notreasonably expect unfetteredstate access to their received text
        communications   while also giving effect to recipients' autonomous decisions to assist
        police.

        However, as with oral communications, a recipient's consent to disclose a sender's text
        communications to police should only defeat the sender's expectation of privacy over
        preexisting messages. Contrary to several lower court decisions, this article argues that the
        acquisition offuture, incoming communications from recipients' devices (with or without
        consent) invades senders'reasonable expectations ofprivacy under section 8 of the Charter
        and constitutes an 'interception requiringjudicial authorization under section 184.2 of the
        Criminal Code.

                                   TABLE OF CONTENTS


  1.  INTRODUCTION     ...............................................               2
  II. MA4RAK4AH AND THE ZERO-SUM GAME          ............................. 5
III.  CONSENT SEARCH JURISPRUDENCE          ............................... 7
      A.    FIRST-PARTY CONSENT .................................... 7
      B.    THIRD-PARTY CONSENT        ................................... 9
IV.   APPLYING CONSENT DOCTRINE TO TEXT SEARCHES .................. 11
      A.    AUTHORITY TO CONSENT .................................. 12
      B.    VOLUNTARY AND INFORMED ................................. 15
 V.   PROSPECTIVE SURVEILLANCE FROM RECIPIENTS' DEVICES ............. 16
      A .   C ON SENT  ..............................................               17
      B.    PRIVATE COMMUNICATION        ................................ 18
      C .   INTERCEPT   .............................................               20
V I.  C ONCLUSION     ...............................................               26


Professor, Faculty of Law, University of Alberta.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 3,000 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most