Ontario Court Rules That Texts Are Not Private

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Just when you thought it was a safe and private 'conversation,' you find out that texting is not private at all – especially once when the message is read by the receiving party. That, according to the Ontario Court of Appeal, is the ruling – Justice Justin MacPherson wrote in the majority ruling that the expectation of privacy evaporates once the message reaches its destination. We can expect privacy from outsiders when we compose and during the sending of an SMS text message, but once it arrives on the recipient's phone, apparently it is free game for anybody to view – even the police.

The argument over the privacy of a text message, in this case, started because of texting done in the acquisition of illegally purchasing firearms. Co-accused, Andrew Winchester, was apparently selling illegal arms to the other co-accused, Nour Marakah, over a six-month period. With a warrant, the police raided their homes and took their cell phones. After examining their cell phones, it was apparent the texts clearly implicated both men. The two men argued that the information obtained from their phones was private and therefore not admissible in court.

Nick Devlin, senior counsel with the Public Prosecution Service of Canada, said this is why we should teach our children that anything they say in a text message is not really private. Laura Berger, the acting director of the public safety program at the Canadian Civil Liberties Association, opposes this ruling and view. There are rules in effect for telephone conversations, and she claims that for young people, texting is replacing calling your friend on the phone. If that is the case, she believes that the same rules that apply to phone conversations should apply to conversations that are in a text format. It is a change in technology, and the rules need to be updated to reflect those changes.

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The bigger question is how text messages should be classified? The majority ruling, in this case, classified text messages as an email or a letter, and easier to obtain. Judge H.S. LaForme, the dissenting opinion, wrote that a text message is a private communication between two people – and much like a modern day version of an oral conversation. Others argued that treating text messaging like a wiretap would hamper the ability of the police to do their job. However, because there was a dissenting judge, this allows the defendants to appeal to the Supreme Court – the first time they will rule on a case such as this. It will have an enormous impact on the future of SMS text messaging privacy.