Fate of online sting operations hanging in Supreme Court case

The Supreme Court of Canada (SCC) will have to weigh the impact its decision could have on online undercover operations pursued without a warrant by law enforcement, as it considers overturning a lower court ruling that found an alleged child predator did not have a reasonable expectation of privacy when he used the internet to lure his victims. “If you accept this proposition, you will put out of business undercover operations on the internet,” Nicholas Devlin, general counsel with intervenor Public Prosecutions Services Canada, said in court Friday. “There is no mechanism to get...any form of judicial authorization for that sort of proactive policing — that’s not how those mechanisms work. So that is why this is a case of great concern.” Sean Patrick Mills was charged with four counts of internet luring in Newfoundland and Labrador after interactions he had in 2012 with email and social media accounts of fictitious under-age girls created by undercover police. The conversations, which were recorded by police using a computer program called Snagit, were then used as evidence to obtain search warrants to access his computer and get more evidence, court documents said. The trial judge found that the police should have obtained a warrant before they “seized” the electronic chats, and that the use of the Snagit program was a seizure contrary to the unreasonable search and seizure clause of section 8 of the constitution. But that ruling was overturned by the province’s appeal court, which found the communications between the two people were direct and could not have been “intercepted,” while the Snagit program was just used to retain a record of the communication. On Friday, the land’s top court tussled with the question of when there is a reasonable expectation of privacy in a case that involves strangers interacting with each other — in this case undercover police and a citizen — over the internet, and if those conversations require a warrant, similar to a wiretap authorization for voice communication obtained by the state. If a warrant is required to record the conversation, as Mills suggested in the case, then it would undermine the usefulness of undercover investigations over the internet, intervenors and lawyers for the respondent argued. “If the position advocated by the Applicant were to become law, then this type of undercover technique would become practically impossible to execute,” crown lawyers for Newfoundland provincial government, the respondent in the case, wrote in their statement. “Such a result would frustrate legitimate law enforcement efforts to improve online security for children and young people who engage social media.” Rosellen Sullivan, who is counsel to Mills, argued Friday that there should be a reasonable expectation of privacy for her client, especially when the conversation is prolonged and develops into something intimate and comfortable. Sullivan also said her team is not suggesting online investigations like these cease to exist, but rather they be guided by clear constitutional rules with judicial oversight. Intervenors, including the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC), argued that individuals may have a reasonable expectation of privacy in one-on-one digital communications with strangers. “As police investigations become increasingly internet-based, this case offers this Court a valuable opportunity to rule on the permitted uses of and privacy interests involved in online instant ‘chat’ messages recorded during police investigations,” lawyers for Mills said in their statement. But Justice Michael Moldaver challenged Sullivan on the suggestion that there should be an expectation of privacy when people don’t know who they are talking to and expressed concern that Sullivan might be trying to extend the Marakah case. In Marakah, the Supreme Court found an alleged firearms trafficker had a reasonable expectation of privacy when law enforcement searched his accomplice’s cellphone for evidence used against him. The difference between the two cases is that Marakah knew his accomplice, whereas Mills “voluntarily shared personal information with someone he did not know and whose identity he could not confirm,” therefore ceding any expectation that the recipient would keep the information confidential, the respondent, represented by Lloyd Strickland, said in its statement. Sullivan was also challenged on several aspects of her defence of Mills, including how a warrant could be obtained before the investigation when the warrant is dependent on the conversation itself. “Maybe we need to fashion a new scheme here,” she said. Also appearing as counsel for the Mills’ side was Michael Crystal. Crystal argued that the reasonable expectation of privacy principle is a “standing” issue in this case, meaning the accused should be able to defend against any and all evidence obtained and used against him, such as the chat messages that obtained no judicial authorization to gather in this case. Crystal argued that self-incriminating evidence, as those retrieved from chats, can be used to secure wrongful convictions. In their statement of claim, Mills’ lawyers argued that Part 6 of the Criminal Code includes “record” as a definition for an “intercept” that requires a warrant. They argued further that the province’s appeal court — in determining that it was a communication between two people — did not give weight to the argument that there were no “intended recipients” of the messages when police set up the profiles to capture strangers in the act. Lawyers for the respondent argued, however, that the appeal court was correct to determine that no “intercept” took place. That’s because, the respondent said in its statement, the interactions, made partly over the Facebook Inc. platform, were and are automatically recorded and is accessible at any time. The Snagit program just made a copy of what is readily available, which is not an “intercept,” they said. Strickland also told the court that there shouldn’t be an expectation of privacy when the sender is transmitting a crime against the recipient. And while “anonymity may be the factor here that disqualifies a reasonable expectation of privacy,” Strickland suggested the case could present a “real opportunity to deal with a potential weakness with the Marakah decision and to take a framework and add reasonable protections for vulnerable people.” — With reporting by Ahmad Hathout at ahathout@thewirereport.ca and editing by Anja Karadeglija at akarad@thewirereport.ca

Fate of online sting operations hanging in Supreme Court case

News | 05/29/2018 12:24 pm EDT

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