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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. Gandy (1993) and Lyon (2003) warn that the data trail left by online transactions may bring about a new form of automated discrimination. Lyon (1994) posits that surveillance is emerging as an organizing principle of late modern societies and will have serious implications for democracy. Even though jurists share many of these concerns, criminology has been slow to involve itself in the legal debate on privacy, (2) focusing instead on what Schoeman calls "the socially hyperactive role privacy plays in contemporary controversies about personhood" (1992: 11). Likewise, the courts have been reluctant to fully draw on the sociological perspective when constructing formal rules about state interference in private spaces. And yet the social sciences have much to offer to the legal debate, as they enable us to better understand the lived experiences of those who inhabit networked spaces and to incorporate that understanding into legal discourse.

In this article, I examine the Supreme Court of Canada's position that reasonable expectations of privacy in informational spaces can be protected by focusing on the protection of the information itself. I then measure this position against the findings of research studies that have examined the social behaviour of young people in online spaces. I argue that the legal test being advanced by...