Ricoh eDiscovery

Texting Evidence: Common Law Developments to Consider

Posted by Marketing |3 minute read

Feb 23, 2017 4:14:22 PM

SMS and Text Messages as Electronic Evidence

 

With the continued expansion and development of connected devices, tablets and smartphones, it is becoming increasingly important for lawyers to examine their information governance policies as it relates to mobile devices and privacy implications.

Gartner estimates that by 2020 there will exist about 21 billion devices forming the internet of things - i.e. devices/things that are able to connect to the internet and communicate with other devices. For every additional bit and byte of information that is being created as mobile device usage increase, the importance of these gadgets as potential sources of electronically stored information (ESI) for electronic discovery (eDiscovery) is undeniable.

Following are two recent developments to the common law that lawyers should consider, especially when it comes to SMS/text messaging and privacy.

Mobile Messages and the Reasonable Expectation of Privacy

Is text messaging / SMS a private form of communication? In R. v. TELUS Communications Co. [2013 SCC 16, [2013] 2 SCR 3.], the Supreme Court stated that an SMS/text message, akin to a phone call, is a private communication.

With respect to the Canadian Charter of Rights and Freedoms, the right to be free from unreasonable search and seizure is grounded in a reasonable expectation of privacy in a free and democratic society.

A Matter of Control

As a standard point of analysis, the reasonable expectation of privacy standard focuses on the action being unreasonable on the basis that it violates the expectation of privacy that a reasonable individual would have. Under the heading of legal rights, section 8 states:

“8. Everyone has the right to be secure against unreasonable search or seizure.”

In R. v. TELUS Communications Co., the Supreme Court of Canada found that the reasonable expectation of privacy protected by Section 8 applies to modern communications technologies such as text messages, even if the data in question is located on a third-party server.

However, in R. v. Marakah [2016 ONCA 542, which was recently granted leave to appeal.], the Court of Appeal for Ontario made a distinction, stating “a person has a reasonable expectation of privacy in a text message until it reaches its intended destination” [Ibid at para 132]. This means that sent text messages have a reasonable expectation of privacy, but once a text message has been received this reasonable expectation of privacy is lost.

Is privacy still the norm?

This is another example that the law in Canada is evolving in this area and the Marakah case will likely go up to the Supreme Court of Canada (which was recently granted leave to appeal) to clarify privacy rights.

 


Are you working with text message evidence on a recent matter? Commonwealth Legal can help. Contact us today.

By working with an experienced service provider that specializes in ESI will give lawyers the ability to effectively capture, process and search not only email files, but hundreds of digital file formats originating from computer hard drives, servers, backup tapes, CD-ROMs, disks and more, using the right solution that unites human expertise with technology to deliver exceptional results.

Topics: Intelligent Review, eDiscovery Solutions

   

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