“Emanations, Snoop Dogs and Reasonable Expectation of Privacy” (2007) 52:3 Criminal Law Quarterly 392-432.
In this article, co-authored by one of my fave researchers, Jena McGill, we examine the social implications of information emanations that contain valuable personal data, which radiate from our electronics, our personal effects, our homes and even our bodies. Contemplating new and emerging technologies designed to track these emissions, we consider the approach adopted by the Supreme Court of Canada with respect to existing technologies such as “forward looking infrared” and “sniffer dogs.”
We try to illuminate five main points. First, we contend that the majority of snoop dog decisions in Canadian courts have been wrongly decided; relying on an inappropriate use of judicial analogy that stems from a misreading of Tessling. Second, we warn against an excessively reductionist approach to informational privacy adopted in many recent reasonable expectation of privacy cases. Third, we warn against a non-normative approach to ‘reasonable expectations’ that is also gaining currency in several provincial courts across Canada. Fourth, we propose a different reading of Tessling, one that is better suited to the snoop dog cases and, perhaps more importantly, for subsequent application in cases concerning emerging high tech surveillance. Finally, it points to the future, suggesting that the A.M. and Kang Brown decisions are not just about snoop dogs; these two cases foreshadow the future of emanation information in a networked society.
We conclude by suggesting that courts must confront the social implications of informational privacy much more deeply than they have, interrogating its meaning, not one technology at a time, but within a larger empirical universe of information emanation. We warn that a failure to clarify the Tessling decision in the snoop dog cases and in the broader context of ubiquitous information emanation, especially alongside the maintenance of reductionist, non-normative approaches to informational privacy across Canadian courts, could seriously diminish the privacy rights of Canadians in a manner that the Supreme Court of Canada has until now been very careful to guard against.
