A New "Vu" on Metadata: The Supreme Court's Shot Across the Bow?

The Supreme Court of Canada's recent judgment in R. v. Vu was about whether a general search warrant to search a premises extended also to a search of a computer found on the premises.  The answer was, in a word, "no".  Vu is a strong affirmation of traditional search and seizure rules. 

It is also, however, the most sustained consideration by the Supreme Court (of which I am aware) about how the search and seizure paradigm has been changed by the electronic age.  Justice Cromwell, for the Court, discusses at length how computers are qualitatively different from a privacy perspective than other things that might be found in the searched premises.  I was particularly struck by the following paragraph [42]:

...computers contain information that is automatically generated, often unbeknownst to the user.  A computer is, as Gold put it, a “fastidious record keeper”: para. 6. Word-processing programs will often automatically generate temporary files that permit analysts to reconstruct the development of a file and access information about who created and worked on it.  Similarly, most browsers used to surf the Internet are programmed to automatically retain information about the websites the user has visited in recent weeks and the search terms that were employed to access those websites. Ordinarily, this information can help a user retrace his or her cybernetic steps. In the context of a criminal investigation, however, it can also enable investigators to access intimate details about a user’s interests, habits, and identity, drawing on a record that the user created unwittingly: O. S. Kerr, “Searches and Seizures in a Digital World” (2005), 119 Harv. L. Rev. 531, at pp. 542-43. This kind of information has no analogue in the physical world in which other types of receptacles are found.

This paragraph is about, in essence, "metadata".  This metadata logging feature of computer operations, along with several others, leads the Court to the view that computers merit "distinctive treatment under s. 8 of the Charter. The animating assumption of the traditional rule that if the search of a place is justified, so is the search of receptacles found within it simply cannot apply with respect to computer searches" [at para 45].

Now, this was not a case about interception of metadata per se.  But the Court's invocation of metadata as something than enhances the need to give computers robust protections against unauthorized search and seizure is surely a shot accross the bow.  This should give pause to those who might be partaking in warrantless intercept of metadata (or those who may be considering tabling a new lawful access bill that would authorize such warrantless intercept). 

Constitutional search and seizure protections are always backward looking, and always catching up to technology.  But paragraph 42 of the Supreme Court's judgment suggests that the Charter of Rights and Freedoms is still in the race.