Are Text Messages Less Private?

Ask people on the street how private their communications are and you will get a variety of answers. It turns out the form of media used has an interesting impact on how much privacy should be expected.

Our common law legal system, where decisions are based on previous judgments. means that changes in technology are not always handled consistently. When popular communication technologies change every few years, or even months, it can create unpredictable decisions.

For example, most of us grew up when the dominant device for verbal communication was the telephone. From Alexander Graham Bell’s invention to the advent of cel phones, the law had plenty of time to develop rules. These resulted in strict prohibitions on eavesdropping or tapping into voice calls unless there was court permission. That permission was usually in the form of a warrant, with built in protections to prevent abuse.

Cel phones did not change things much. It was still voice communication. But the advent of email and text messaging did. There were more ways to communicate than just voice. Importantly, some of those technologies left permanent or semi-permanent copies that could be later accessed and viewed. Courts grappled with whether to treat the privacy of these communications the same as old fashioned voice calls.

A split developed. In some email cases it was found that people had an expectation of privacy different than a voice call. Compared to voice contact, which everyone had become used to, judges began to find that those who sent emails had reasonably expected the information would last longer and therefore was less private.

Email use is now trending downward, especially among younger users. Texts or other forms of instant messaging (we will refer to both as “texts” for this discussion) continue their ascendancy. In fact, texts have supplanted voice as a preferred form of communication for many.

Texts share some elements of voice and email. The instant nature of the communication makes it akin to voice. On the other hand, as anyone who has had their phone stolen can attest, the communication details do not go away unless active steps are taken to delete them.

Does this mean texts are less private than voice calls, and are subject to seizure and review by law enforcement without a warrant? An August, 2016 Ontario Court of Appeal case suggests they are. This is different than some earlier decisions, and is likely going to be appealed to the Supreme Court of Canada, so the question is not settled.

Leave aside the old argument that if you have nothing to hide, you should not be concerned about unreasonable seizure. Whatever your reasons, if you want to protect your data, you should implement appropriate technological protections. Password protecting your device is one, or using an encrypted messaging app is another.

But there is a big problem. By definition, communication involves at least one other party. What if you have taken all the steps to lock down your device but the police simply seize the phone of the person you were interacting with? They can easily see all your messages.

This is what the Ontario case dealt with, and the judges upheld the search of the other party’s phone to find incriminating evidence against the accused. In short, they held that once you send a text to someone else, you are expecting that your privacy protections are at least diminished, if not eliminated.

The court made specific mention of the permanence of email and texts compared to voice conversations. In their view, those who know their communication will survive for a period of time are tacitly agreeing that the communication is less private.

The Supreme Court will have the last word, but in the meantime the lesson is that senders should assume that protecting their conversations is completely up to them. Even then, anything shared with another individual is potentially open to disclosure.

Ben Franklin famously declared that the only way to keep a secret among three people is if two of them are dead. No, we are not saying you should murder your friends, but his point is accurate. As long as you are communicating in a fashion that saves the messages in a machine or device belonging to someone else, you have a bigger problem than just protecting your own device against a search.

This article was originally published in SaskBusiness Magazine and is reprinted with their kind permission.