The law is failing at meeting our privacy expectations in a digital world

By Kristina Yeretsian March 16, 201816 March 2018

The law is failing at meeting our privacy expectations in a digital world


The interaction between digital proliferation and the law is growing increasingly complex, as courts are confronted with fundamental questions about our reasonable expectations of privacy in an online world.

The Supreme Court of Canada’s recent ruling in R. v. Marakah is a case in point. Marakah centers on text messages, and whether it is reasonable for a sender to have an expectation of privacy over messages once they have been received in the recipient’s phone. The appellant, Nour Marakah, sent text messages regarding illegal transactions in firearms. The police seized both Mr. Marakah’s BlackBerry and his accomplice’s iPhone, and found incriminating text messages. The police charged him and sought to use the text messages as evidence against him. In one of her final criminal law decisions, then Chief Justice Beverley McLachlin wrote for the majority, concluding that under s. 8 of the Charter of Rights and Freedoms, people have a reasonable expectation of privacy as to the contents of the text messages they send. McLachlin’s reasoning was consistent with the analysis of the United States’ Chief Justice John Roberts in a 2014 ruling, Riley v. California, where his court unanimously held that the warrantless search and seizure of digital contents of a cell phone during an arrest is unconstitutional.

Both Marakah and Riley are examples of how courts in Canada and the U.S. are grappling with the intersection of technological innovation, law and precedent. Both are hallmark victories for privacy and information rights. The courts’ sympathy for appellant privacy rights in these cases show that judges themselves are not divorced from the widespread use of e-mail, internet and cellphones. Or perhaps, as suggested in the 2014 R. v. Spencer decision, there is just something so personal and intimate about the information found on an individual’s smart devices that gives these tools a higher threshold of privacy than a desk drawer or an apartment unit.

The issue of control over the contents of an individual’s smart device brings up the broader issue of consent, which is widely regarded as the cornerstone of Canadian privacy law. Consent is based on users’ agreeing to the collection, use and disclosure of their private information. This premise is based on privacy law that was first introduced 20 years ago, prior to the rise of smart devices and social media sites, that may make it unfit for today’s norms. Although the courts have accorded individuals a reasonable expectation of privacy over the contents of their smart devices, the law is struggling to maintain its stronghold on privacy rights when personal information is becoming increasingly monetized and the standard of consent has become almost implied, with little consideration for the decision-making capacities of individual citizens.   

One of the many examples of this struggle involves the issue of jurisdiction where many technologies transpire traditional borders. As the world becomes more interconnected, the legal questions over control and consent get complicated. The ramifications of this were seen in the recent Google Inc. v Equustek Solutions Inc. case, where Canada’s Supreme Court ordered Google to de-list entire domains and websites from its global search index. The Supreme Court’s decision reflects its attempts to curb Google’s global reach, setting an exciting precedent for technology, intellectual property and privacy matters. However, after losing in the Supreme Court of Canada, Google brought an action against Equustek in California. Google argued that the Canadian order was unenforceable in the United States because it conflicted with the First Amendment, an argument that it subsequently won. The California decision is troubling as Google and many other online providers operate global platform but may now fight to have only the laws of the United States apply to their businesses, creating a jurisdictional dimension to many legal battles in the future.

Although the ability for technology to improve connectivity and communication is innovative and promising, there is also a danger that existing models of regulation and conflict resolution are unable to match consumers’ expectations of privacy in a technology-savvy world, leaving consent and control of our digital information as mere myth.  

Kristina Yeretsian is a JD Candidate at the University of Ottawa Faculty of Law 

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