PHIL 338 - Privacy Beyond Control (Handout 12)

What was the main argument presented by Chief Justice McLachlin in Marakah regarding privacy expectations?

She argued that the subject matter of the search was the conversation between the arms dealers, and that the defendant had an objectively reasonable expectation of privacy concerning that conversation.

What is the 'control test' in relation to an expectation of privacy?

A subject's expectation of privacy is objectively reasonable only when she controls the target of her expectation, with exceptions for pathological cases and constructive control.

How does the concept of constructive control relate to privacy?

Constructive control serves as a legal substitute for genuine control, often arising in professional relationships where there are obligations to protect confidentiality.

What did the majority claim about Marakah's control over the text conversation with Winchester?

The majority claimed that Marakah retained an appropriate type of control over the text conversation even after it had ended.

What was the critical flaw in the majority's decision according to the dissenting opinion?

The critical flaw was in conflating control over the information with control over the entire conversation, neglecting that conversations are influenced by multiple factors beyond just conveyed information.

When is it possible for a subject to still retain an expectation of privacy despite not having direct control over the information?

This can occur in cases of constructive control, where a professional or commercial relationship imposes an obligation to protect privacy.

What does the term 'pathological cases' refer to in relation to the control test?

Pathological cases are idiosyncratic instances where an objectively reasonable expectation of privacy exists without typical control.

What is the fallacy of composition as discussed in the context of Marakah's ruling?

It is the presumption that the whole (the conversation) must inherit the features of its parts (the conveyed information), which does not hold true.

Why is Marakah's ability to restrict access considered significant in the majority's reasoning?

An ability to restrict access is a crucial aspect of privacy-determining control that supports a reasonable expectation of privacy.

How does sharing a device impact one’s expectation of privacy based on the lecture notes?

Sharing a device, like a computer, means that while one retains a reasonable expectation of privacy, it also permits the other controlling parties to access and potentially disclose information.

R v. Marakah

A landmark case addressing privacy expectations regarding electronic communications.

Control Test

A standard stating that a subject's expectation of privacy is objectively reasonable only when they control the target of that privacy expectation.

Pathological cases

Idiosyncratic cases where non-control factors suffice to establish a reasonable expectation of privacy.

Constructive control

A legal substitute for genuine control, applicable in professional or commercial relationships.

Subject matter of the search

The actual focus of a search, which in Marakah was the conversation rather than the phone.

Objectively reasonable expectation of privacy

A standard benchmark for determining an individual's privacy rights based on various circumstances.

Justice McLachlin

Chief Justice who authored the majority opinion in Marakah, arguing for the significance of control in privacy expectations.

Control over information

The ability to dictate how, when, and to whom information is disclosed, which impacts privacy expectations.

Fallacy of composition

The logical error of assuming that what is true of the parts must also be true of the whole.

Privacy right

A legal entitlement to control access to personal information, which can exist without absolute control.