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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. 55 Osgoode Hall L. J. 398