Milling around in the World of Internet Privacy

Sean Mills was chatting online. He thought he was chatting to a young girl. He was, in fact, chatting with a police officer. The officer had created an online profile portraying himself as a 14 year old girl. Mills contacted him and then began to chat. Eventually a meeting was set up. Mills was arrested at the meeting. The police had captured the chats between Mills and the officer. The trial judge explained this process.

[6]        …  In order to ensure that he had captured all the information on the screen, Constable Hobbs employed a program called “Snagit” which allows the computer user to capture and copy the information on the screen.  Snagit is a screen shot program that captures video display and audio output.  Constable Hobbs employed the Snagit program on each of his communications with Mr. Mills. 
[7]        The “Snagit” program is a program that is available to the public and commonly used.

Mills was convicted after trial and appealed: 2017 NLCA 12. On appeal to the Newfoundland Court of Appeal the court considered (i) whether Mills had a reasonable expectation of privacy [REP] and (ii) whether there was an "interception" within the meaning of Part VI of the Criminal Code.

With respect to the REP issue, the court rejected the notion that Mills had an objectively reasonable expectation of privacy:

In this case, the analysis focuses on the third and fourth headings identified in Spencer; that is, Mr. Mills’ subjective expectation of privacy in his communications with “Leann” and whether that subjective expectation was objectively reasonable in the circumstances.  Mr. Mills was using electronic social media to communicate and share information with a person he did not know and whose identity he could not confirm.  On an objective analysis, as the sender of such communications, Mr. Mills must have known that he lost control over any expectation of confidentiality that he appears to have hoped would be exercised by the recipient of the messages.  He took a risk when he voluntarily communicated with someone he did not know, a person he was not in a position to trust.  Any subjective expectation of privacy Mr. Mills may have had was not objectively reasonable.  In the absence of a reasonable expectation of privacy, section 8 of the Charter was not engaged. [@23].

With respect to whether there was an intercept, the court held that an "intercept" requires the participation of a third party - the after-the-fact capture of the communication between two parties did not amount to an "intercept".

That language does not alter the ordinary meaning of an interception which requires the involvement of a third party.  Where there is direct communication between two people, the intended recipient cannot be characterized as having “intercepted” a communication meant for that person. 

Further, the fact, unknown to the sender, that the recipient is a police officer cannot change the nature of the communication or transform a receipt by the intended recipient into an interception.  Viewed from another perspective, if “Leann” had, in fact, been a fourteen year old girl, it could not be said that her receipt of the communications from Mr. Mills constituted an interception. [@13-14].

Mills is one in a series of recent decisions on these issues. The REP ruling is particularly helpful and an important one that helps the continuing body of law considering REP in an internet world post-Spencer. The "intercept" ruling is interesting. It is arguably a narrower interpretation of "intercept" than that advanced in Telus as it requires the direct involvement of a "third party" to constitute an intercept.