If you're interested, be sure to check out a recent Canadian case holding that a general warrant for prospective text messages was improper because the messages were being intercepted, requiring an interception order. The Crown was arguing that obtaining the messages from the phone company was not an interception of real-time communications because they were in a database and could therefore be acquired under the general warrant power. By an American law comparison, the court was essentially holding that interception of future text messages required a wiretap order as opposed to a search warrant or 2703(d) order.
Here's an excerpt from the main opinion (there was also a concurring and a dissenting opinion):
Text messaging is, in essence, an electronic conversation. The only practical difference between text messaging and the traditional voice communications is the transmission process. This distinction should not take text messages outside the protection of private communications to which they are entitled in Part VI. Technical differences inherent in new technology should not determine the scope of protection afforded to private communications....
When Telus copies messages to its computer database, several steps in the transmission process have yet to occur. The production schedule required by the general warrant in this case means that the police likely obtained stored copies of some text messages before they were even received by the intended recipient. Had the police acquired the same private communications directly from the transmission stream, instead of from the stored copies, the Crown concedes that a Part VI authorization would be required. The level of protection should not depend on whether the state acquires a copy of the private communication that is being transmitted or a copy that is in storage by a service provider as part of the communications process....
The police gained a substantial advantage by proceeding with a general warrant. They did not need the Attorney General’s request for an authorization; they did not need to show that other investigative procedures had been tried and failed; they did not need to provide any notice to the target individuals; and they did not need to identify which other individuals’ private communications may be acquired in the course of the search....R. v. TELUS Communications Co., No. 34252 (Can. 2013).
The general warrant in this case purported to authorize an investigative technique contemplated by a wiretap authorization under Part VI, namely, it allowed the police to obtain prospective production of future private communications from a computer maintained by a service provider as part of its communications process. Because Part VI applied, a general warrant under s. 487.01 was unavailable.
Here's some commentary:
It's not your job to collect or retain customer information for the cops
Supreme Court of Canada says that wiretap order is required to obtain text messages
It's not your job to collect or retain customer information for the cops
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