If the Supreme Court Were on Facebook: Evaluating the Reasonable Expectation of Privacy Test from a Social Perspective

Article excerpt

   The poorest man may in his cottage bid defiance to all the forces
   of the Crown. It may be frail--its roof may shake--the winds may
   blow through it--the storm may enter--but the King of England
   cannot enter--all his force dares not cross the threshold of the
   ruined tenement.

   William Pitt, First Earl of Chatham (cited in Fontana and Keeshan
   2007)

The individual's right to an autonomous sphere of action protected from state interference is one of the core principles embedded in the criminal law. The Criminal Code of Canada expressly limits the power of police officers to intercept private communications (ss. 183-196), conduct wiretaps (ibid.), search private property (ss. 487, 488), arrest individuals (s. 495) and seize evidence (s. 487.01). The Canadian Charter of Rights and Freedoms similarly constrains police powers by enshrining the right to be free from unreasonable search and seizure (s. 8), and the right to life, liberty, and security of the person (s. 7). Moreover, limiting police powers to place citizens under surveillance has long been recognized as one of the hallmarks of a free and democratic society. As Mr Justice La Forest has stated,

   [Privacy] is at the heart of liberty in a modern state. Grounded in
   man's physical and moral autonomy, privacy is essential for the
   well-being of the individual. For this reason alone, it is worthy
   of constitutional protection, but it also has profound significance
   for the public order. The restraints imposed on government to pry
   into the lives of the citizen go to the essence of a democratic
   state. (R. v. Dyment at para. 17)

However, the line that defines the citizen's private sphere is often a moving one. It has been especially challenged in the past 100 years with the introduction of new information technologies. When photography was first introduced, for example, American jurists Warren and Brandeis argued that the individual's "right to be let alone" would require special protection, to ensure that technology did not erode a respect for privacy. They wrote,

   Recent inventions and business methods call attention to the next
   step which must be taken for the protection of the person, and for
   securing to the individual what Judge Cooley calls the right "to be
   let alone." Instantaneous photographs and newspaper enterprise have
   invaded the sacred precincts of private and domestic life, and
   numerous mechanical devices threaten to make good the prediction
   that "what is whispered in the closet shall be proclaimed from the
   housetops." For years, there has been a feeling that the law must
   afford some remedy for the unauthorized circulation of portraits of
   private persons; and the evil of the invasion of privacy by the
   newspapers, long keenly felt, has been but recently discussed ...
   (Warren and Brandeis 1890: 195)

Interestingly, Warren's and Brandeis's interest in privacy was neither legalistic nor theoretical; it reflected their perception that new technologies were changing the modern experience of a private life by enabling others to invade established social boundaries (Steeves 2005a). They argued that these new technologies not only affected society as a whole but had detrimental effects on the individual, as a loss of privacy threatened to diminish the autonomy of an "inviolate personality" (Warren and Brandeis 1890: 205).

Warren and Brandeis's concerns are shared by modern criminologists, and the effect of new technologies on the self and society is a central theme of surveillance studies. Networked environments such as the Internet have attracted special attention, as a growing number of people now carry out what were previously considered private activities on public cables or airwaves. Scholars like Koskela (2004) and Zizek (2002) argue that new technologies are eroding the boundary between the public and the private. …