by Keiisha Pillai, Articling Student
Be careful what you write in your Facebook direct messages.
Last month, Justice Bawden of the Ontario Superior Court released a decision, R. v. Patterson (2018 ONSC 4467), which suggests that when the direct messages sent on Facebook make up the action, or the “actus reus”of a crime, you do not have a reasonable expectation of privacy.
In this case, Justice Bawden examined whether an accused had a reasonable expectation of privacy with respect to Facebook records of conversations he had with a complainant. He concluded that there was no reasonable expectation of privacy, and a warrantless search by police of Mr. Patterson’s direct messages did not violate his Charter rights.
First, let’s take a look at the facts. Mr. Patterson, was charged with luring a child contrary to s. 172.1 of the Criminal Code.It was alleged that he used Facebook Messenger to lure a 15-year-old boy for the purpose of committing a sexual offence. The boy provided investigators with his Facebook password and gave them permission to download his communications with Mr. Patterson. Police then sought and received a complete record of Mr. Patterson’s Facebook communications after obtaining an order from American courts that required Facebook to give Police records of Patterson’s communications with the boy.
To determine if there was a reasonable expectation of privacy, Justice Bawden applied the framework followed by the Supreme Court of Canada in R. v. Marakah(2017 SCC 59). He considered the following questions:
- What was the subject matter of the search?
- Does the applicant have a direct interest in the subject of the search?
- Does the applicant have a subjective expectation of privacy in the communications?
- Is the applicant’s subjective expectation of privacy objectively reasonable? In determining whether the expectation is objectively reasonable, the following factors are relevant:
i. The place where the search occurred;
ii. The degree to which the information seized can be described as private;
iii. The extent of the applicant’s control over the place where the search occurred.
What was the subject matter of the search?
Justice Bawden considered that the private communications exchanged across Facebook are like text messages in that they attract a different expectation of privacy than intentionally public messages on a Facebook user’s profile page.
Did Mr. Patterson have a direct interest in the seized information?
Justice Bawden classified these direct messages as text based conversations, which formed the actual conduct making up the criminal offence of child luring. Since these messages formed the action, or the actus reus of the crime, he found that Mr. Patterson had no direct interest in this category of communications since, “the constitutional rights which protect our privacy have never gone so far as to permit an accused to claim privacy in respect of his own criminal offences.”
Did Mr. Patterson have a subjective expectation of privacy in the communications?
Overall, Justice Bawden found that Mr. Patterson did have a subjective expectation of privacy.
Of note, he considered the fact that Mr. Patterson created a different persona, going by a fake name on Facebook, suggested that he expected that his communications would be private, since it would be harder to trace the account back to him.
Was it objectively reasonable for Mr. Patterson to have an expectation of privacy?
Justice Bawden found that Mr. Patterson’s expectation of privacy in his Facebook records “dies here”. The young boy with whom Mr. Patterson was messaging never assured Mr. Patterson that the messages would stay confidential. Among other considerations, he observed that:
“All of the messaging took place over the Internet with snippets and artefacts of the conversation being captured on devices, servers and systems at every juncture of the communication. a reasonable internet user might hope that such communications would remain private but no one with even a modicum of understanding of information technology would expect it.”
Of note, Justice Bawden also observed that Mr. Patterson had no control over the messages once he sent them to the young boy: He couldn’t prevent the messages from being digitally shared, nor could he assume that the boy would delete these messages. With respect to the direct messages obtained from servers in Texas, Justice Bawden also found that Mr. Patterson obviously had no control over these Facebook servers.
Justice Bawden found that Mr. Patterson did not have a reasonable expectation of privacy in these Facebook Messenger conversations.
In my opinion, it is interesting that Justice Bawden states that it is not objectively reasonable for an users to expect that conversations over Facebook Messenger are private.
I believe that most Facebook users would think their Facebook Messenger conversations are just as private as text messages. And if the Supreme Court of Canada found that there can be an expectation of privacy in the content of text messages, shouldn’t this be the same for Facebook Messenger conversations? After all, both conversations take place between a selective group of people and like phones which contain text messages, Facebook accounts are also password protected, suggesting the desire to keep these messages private.
I do acknowledge that phone providers are contractedto confidentiality, and that this may not be to the same extent with respect to Facebook. Nevertheless, I don’t think people who use both texts and Facebook Messenger are alive to this difference and would consider direct messages over Facebook as private as text messages.
It seems to me that Justice Bawden minimizes the private aspects of these messages and places more weight on the potential for these conversations to become public: He notes that the exchange was stored on various servers, on different machines (cellphones and computers), and that Facebook accounts used on public computers could be accessed by other people. He also notes that Facebook messages could be digitally shared. But can’t text messages also be forwarded and shared?
So be careful what you write in those Facebook messages — they’re not as private as you think they are.