If the Supreme Court Were on Facebook: Evaluating the Reasonable Expectation of Privacy Test from a Social Perspective

Abstract

This article examines the Supreme Court of Canada's position that reasonable expectations of privacy in informational spaces can be protected by focusing on the protection of the information itself. It then measures this position against the findings of social science research studies that have examined the behaviour of young people in online spaces. The author argues that the legal test being advanced by the Court is out of step with what we know about people's online experiences and expectations. As such, the test may limit the Court's ability to protect us from surveillance technologies that negatively affect our dignity, autonomy, and social freedom. Especially as more of our public and private lives migrate to virtual spaces, it is essential that the courts begin to pay attention to the lessons to be gleaned from the social sciences research on privacy and reinvigorate the legal protection of privacy as a social value.