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Article Excerpt
I
In 1999, officers from the Royal Canadian Mounted Police (RCMP) entered the southern Ontario home of Walter Tessling, seizing what one might expect to find at the site of a substantial marijuana growing operation--plenty of marijuana, cultivation paraphernalia, and a cache of firearms. The officers had obtained a judicial warrant for their entry, based partly on tips from both reliable and unproven informants and partly on images of heat emanating from the home recorded by officers' warrantless use of forward-looking infrared cameras in an overhead flight. Tessling was subsequently convicted of drug- and weapon-related offences, but had his conviction overturned by the Ontario Court of Appeal. The warrantless use of the infrared imaging directed at his home, he had argued, violated his constitutional right to be free from unreasonable search and seizure by intruding on his reasonable expectation of privacy; hence--since the warrant for entry would not have been obtained on the strength of the informants" tips alone--all evidence obtained by the entry should be dismissed.
The case went to the Supreme Court of Canada, which overturned the Court of Appeal decision and reinstated the conviction. Against the lower court, the Supreme Court concluded in R. v. Tessling (2004) that Tessling did not have a reasonable expectation of privacy with respect to the relevant information that the RCMP acquired by their use of the infrared imaging. That information was, roughly speaking, that the Tessling's home was generating heat patterns consistent with its being the site of a substantial marijuana grow op. For ease of reference, we may refer to that information hereafter simply as "HEAT."
In this paper I want to explore the cogency of the central line of reasoning that the Supreme Court employed to support its conclusion about HEAT in R. v. Tessling. That reasoning, as we shall see, depends crucially on a premise about whether HEAT is the right sort of personal information to count as being covered by a reasonable expectation of privacy. My thesis is that, once we have engaged in a bit of necessary philosophical reflection on the sorts of personal information that can in general be said to be covered by a reasonable expectation of privacy, we shall see that the Supreme Court got it right in one significant respect: whatever else we might say about the propriety of the Supreme Court's decision in R. v. Tessling, it does not appear that Tessling had a reasonable expectation of privacy with respect to HEAT. Even so, as I shall argue in my closing section, this need not compel us to say that the Supreme Court got it right tout court in R. v. Tessling, for we can consistently claim that although Tessling did not have a reasonable expectation of privacy with respect to HEAT, and hence did not surfer a violation of his reasonable expectation of privacy with respect to HEAT, he may nonetheless have had his constitutional right to be free from unreasonable search and seizure violated in other ways.
Before we begin our exploration proper, it should be noted that Tessling need not have actually expected privacy about HEAT for him to have had a reasonable expectation of privacy with respect to it. He might have had no particular expectation with respect to HEAT at all; he might even have expected not to have privacy about HEAT; and yet he might still have had a reasonable expectation of privacy about it. That is because, in this context, to say that an individual had a reasonable expectation of privacy is really to express a subjunctive claim that were the individual to have had the expectation, it would have been reasonable. As the Supreme Court puts it, "Expectation of privacy is a normative rather than a descriptive standard" (Tessling at para. 42).
It is also worth bearing in mind that, although there are important differences between well-known accounts of informational privacy in the philosophical literature, it does not matter very much in the present context which of these accounts one adopts. One main account (Fried 1968; Westin 1967) mentioned by the Supreme Court in R. v. Tessling holds privacy to be a matter of control: an individual has privacy with respect to a bit of information just in case the whens, hows, and whethers of others' knowing that information depend upon her choice. Another account (Allen 1988; Gavison 1980; Powers 1996) maintains that an individual has privacy with respect to a bit of information, provided others' ability to know it is limited by certain social barriers or legal norms whose establishment may have nothing to do with her own control. Yet another account (Parent 1983) takes an individual's privacy to consist simply of the ignorance of others about the relevant information, regardless of how easily they could come to know it, whether their coming to know it is dependent on her choice, and so forth. But on all of these accounts, we can say that, after the RCMP officers used the infrared imaging as they did, they got their "epistemic hands" on HEAT in such a way that Tessling had no privacy with respect to it. The main question before us, then--whether the Supreme Court was right in its conclusion that Tessling had no reasonable expectation of privacy with respect...
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