Should police be allowed to seize copies of your private text messages from your wireless provider's servers without a wiretap order?

The Supreme Court of Canada is to provide its answer to that question Wednesday in response to an appeal from wireless provider Telus Corp.

Telus had argued that it shouldn't have to comply with a "general warrant" from Owen Sound police in March 2010 to provide copies of all the text messages sent by or addressed to two of its subscribers during the first two weeks of April that year.

Telus argued that seizing the messages would constitute "interception" of the communication and would therefore require a wiretap warrant, which is more difficult to get than a general warrant due to special privacy provisions in the Criminal Code protecting private communications.

For example, wiretap warrants can only be obtained for certain offences, and police usually have to show that other investigative techniques will not provide the information they need.

An Ontario Superior Court judge ruled against Telus in 2011. It agreed with Crown lawyers that handing the messages over to police did not constitute "interception" because the copies of the text messages being handed over to police were not intended to be transmitted and were not created and stored for a purpose related to transmitting the messages.

That's because Telus stores copies of all text messages for 30 days in a special database "for troubleshooting purposes" — whether they are delivered to the recipient or not.

However, civil liberties and privacy advocates say that technical interpretation is too strict in an age when types of communication such as text messaging have become popular alternatives to phone conversations. They believe the interpretation doesn't sufficiently take into account the purpose of the extra legal protections in place for people whose conversations might be intercepted by police.

Covert access

Abby Deshman, director of the public safety program at the Canadian Civil Liberties Association, one of the interveners in the Telus case, noted that the way police would be accessing people's text messages is covert and users don't have the same level of control they would in home or offices searches that could be authorized with a general warrant. In the latter cases, for example, users could decide what documents to keep copies of.

"Here, you may be giving over access to a text message that the end user hasn't even seen, much less decided whether they want to keep it on their phone," Deshman said in an interview.

Tamir Israel, a staff lawyer with the University of Ottawa's Samuel-Glushko Canadian Internet Policy and Public Interest Clinic, one of the other interveners in the case, said the outcome of the case could have implications that go beyond text messaging.

Email and many other online communications also use delivery mechanisms that may involve temporary storage on a service provider's servers, he said, and could also be affected by a ruling allowing text messages to be seized from a service provider under a general warrant.

"Overall," he said in an email, "this case is indicative of the need to bring some of our legal protections into the 21st century."