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THE EROSION OF SECTION 8 of the CHARTER: THIRD PARTY TECH COMPANIES POISONING THE CONSTITUTIONAL ECOSYSTEM

-- By MaxwellMiller - 04 Mar 2024

I.INTRODUCTION

Are Canadians Wide Awake to the ongoing (un)lawful surveillance of their personal information? With a whimper, the Globe and Mail recently declared “RCMP use of private-sector surveillance services worries federal privacy watchdog”. “Worry” is an understatement. By virtue of an investigation undertaken by the Privacy Commissioner of Canada we know that the Royal Canadian Mounted Police (“RCMP”), Canada’s federal police force which also undertakes municipal policing contracts in large parts of the country, has been conducting widespread open-source intelligence gathering of Canadian’s data. In the words of the Commissioner, “[t]he initiative [“Project Wide Awake” (“PWA”)] uses privacy impactful third-party services to collect personal information from a range of sources, including social media, forums, the dark web, location-based services and fee-for-access private databases. The data is used for a variety of policing purposes, including investigating suspected unlawful activity, locating missing persons, identifying suspects, detecting threats at public events attended by high-profile individuals, and maintaining situational awareness during an active situation.”

Importantly, all this surveillance is conducted without warrant or in relation to a specific criminal investigation. This marks a significant erosion of constitutional rights. In this context a fundamental question of constitutional law must be answered: is this legal? Let me put it more concretely: has a person consented to a police search, for the purposes of section 8 of the Charter of Rights and Freedoms (the “Charter”) when they enter into a contract of adhesion to use a particular social media application, which contains a clause that allows the media company to sell certain personal information to third parties? I say the answer must be no (at least in some circumstances), putting aside different questions of PWA’s legality under the Privacy Act.

II. PROJECT WIDE AWAKE AND CONTRACTS OF ADHESION

“Since at least 2015, as part of what it characterizes as Open Source Intelligence Gathering, the [RCMP] has been using private sector services to collect personal information from a range of sources, including: social media, forums, the dark web, location-based services and fee-for-access private databases.” (see PCC Report). In particular, Babel X. An essential part of at least a portion of PWA is the RCMP’s contractor’s ability to purchase or otherwise acquire information from various social media services.

Most social media platforms in Canada employ contracts of adhesion - many allow the media company to sell your personal information to third-parties (subject to certain restrictions in provincial and federal privacy acts). This is in part a central logic of surveillance capitalism, as Zuboff terms it, or, as Courtwright put it, “limbic capitalism”. Today, the data available to analyze us and manipulate us for profit is incredible. With our internet-linked mobile devices we create mass trails of information about ourselves. Increasingly addictive, our smart devices and the use of social media have become, for better or worse, important parts of social life that it is difficult to opt out of without significant social impacts. This makes contracts of adhesion deeply troubling – where the police, among any number of third-parties, may purchase your data.

III. DOES THE CHARTER PROSCRIBE PROJECT WIDE AWAKE?

Section 8 of the Charter provides that “[e]veryone has the right to be secure against unreasonable search and seizure.” Where there is an intrusion on any reasonable expectation of privacy, the state action will be considered a search for the purposes of section 8: Hunter v Southam, [1984] 2 SCR 14. Two questions arise in any section 8 analysis: (1) does the accused have a reasonable expectation of privacy, such that a search has taken place? and (2) if yes, was the search or seizure an unreasonable intrusion upon privacy? A police search authorized by warrant is presumptively reasonable, having satisfied a judicial official that there are sufficient reasonable and probable ground to the search: Criminal Code, s 487; R v Gomboc, 2010 SCC 55 at para 20. If there is no reasonable expectation of privacy in a given situation, then a search may be authorized by law without more. Therefore, defining normative conceptions of privacy is central to constitutional protection.

Several scholars (Rosati; Singh; Fehr) have identified the principle concern flowing from the emergence of limbic capitalism, new technologies, and new police investigative techniques: the erosion of our constitutional rights to be free from unreasonable search and seizure. Skolnik, for example, persuasively argues that the cumulative effects of technological advancement are exploited by police during investigations to gather information that, in the “physical world” would be unconstitutional (Skolnik #1, passim). Indeed, PWA is a paradigmatic example of how the police leverage technology to exploit the criminal procedure doctrines of waiver, abandonment and plain view searches to circumvent traditional section 8 protections. “[P]hysical barriers such as clothing, trunks, and housing conceal criminality” (Solnik #1 at 45) However, constitutional norms proscribe the police from removing these physical barriers to discover incriminating information without a warrant (Solnik #2 at 293-294). Not so in the digital world. One can only conclude from PWA’s design, that its central purpose is to acquire information through the use of technology (and indeed cloaking its search in “waiver” regarding the sale of information to third parties) that they would not otherwise be able to collect. In this sense it should offended our normative conceptions about police intrusion into areas that are private.

Central to each of the legal exceptions to section 8, upon which PWA legality hinges, is shifting the normative characterization of certain kinds of information from private to a public quality. Building on the decision in R v Spence, 2014 SCC 43, on March 1, 2014 the Supreme Court in R v Bykovets, 2024 SCC 6, breathed new life into section 8. Karakatsanis J. writing for the majority characterize the central problem:

[78] By concentrating this mass of information with private third parties and granting them the tools to aggregate and dissect that data, the Internet has essentially altered the topography of privacy under the Charter. It has added a third party to the constitutional ecosystem, making the horizontal relationship between the individual and the state tripartite. Though third parties are not themselves subject to s. 8, they “mediat[e] a relationship which is directly governed by the Charter — that between the defendant and police” …

In this light, I suggest contracts of adhesion cannot be taken as waiver in the wake of Bykovets, making PWA’s mass collection of personal information unconstitutional.

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