The Supreme Court of Canada came down with a 4-3 ruling Thursday in the case of R. v. Fearon, giving police the go-ahead to search the contents of an individual's cell phone, without a warrant, during an arrest. The judgment has some privacy advocates up in arms over what, they say, could easily turn into an invasion of privacy.
"This decision is so contrary to recent judgments like R. v. Spencer," said Raji Mangat from the BC Civil Liberties Association (BCCLA), referring to a recent case in which the Court ruled that police need a warrant to ask telecom companies for information about subscribers. "I'm quite shocked that the Supreme Court thinks an intrusion into a phone isn't a privacy breach."
The Fearon case stems from an incident involving a Toronto jewelry robbery in 2009. Cops had tracked down the suspect, Kevin Fearon, who was believed to have been responsible for the theft at gunpoint.
After a patdown search, police opened up his phone and found a Gucci Mane-inspired text to a friend about the stolen ice: "We did it were [sic] the jewelry at n*gga burrrrrrrrr." Accompanying this missive were some photos of a handgun. At this point, it didn't take Benedict Cumberbatch to realize they likely had their man.
That text message is probably one of the most entertaining shreds of evidence collected by Canadian police in recent years, but let's put that aside. What's troubling about this decision, according to Mangat, is that police already had powers to promptly get a telewarrant for a search.
"Because of the ubiquity of texting as primary communication today, looking through someone's phone is basically like a wiretap," she said. And since warrantless wiretaps are a no-no, the court has set two different standards with this decision, effectively authorizing a 'wiretap lite' upon arrest.
Mangat also pointed out that people who are arrested but not charged or tried could also be subject to police searching their cellphones (or computers, since the court ruled them equivalent). Victims of these kinds of warrantless searches would have little recourse, since there would be no trial to determine the legality of the search.
In certain situations, this could have a chilling effect on free speech. Since protesters routinely get arrested as a form of civil disobedience, they may be less inclined to do so knowing that unfriendly police officers could easily conduct an intrusive search of a protester's phone, potentially exposing intimate photos, medical conditions, or other private information—all with little consequence in a catch and release situation.
As digital policy expert Michael Geist wrote, the court did put four conditions on phone searches. Any such search must stem from "a lawful arrest, the search is incidental to the arrest with a valid law enforcement purpose, the search is tailored or limited to the purpose (ie. limited to recent information), and police take detailed notes on what they have examined and how the phone was searched."
VICE reached out to the office of Daniel Therrien, the privacy commissioner of Canada; though his office was still analysing the decision, Therrien provided a holding statement about it. The commissioner's office was "pleased to see that the Supreme Court of Canada was unanimous in recognizing that there are very significant privacy interests at stake in cell phone searches."
The commissioner's office also pointed to a curious facet of the case: "the court was unanimous in its view that in this case there had been a violation of the individual's right to be free from unreasonable searches and seizures under Section 8 of the Charter of Rights and Freedoms. In this specific case, however, the majority was of the view that the evidence should not be excluded even though police had violated the individual's rights."
In other words, even though Mr. Fearon's rights had been violated by the search, the evidence from that search was admissible. This seeming contradiction might embolden police to play fast and loose with suspects' rights in future, knowing that courts may admit evidence obtained thusly.
Although he hasn't yet released an official reaction, hopefully the privacy commissioner will adopt a more adversarial stance toward the court's decision—or at the very least, come out in favour of legislation to protect Canadians from warrantless phone searches in all but the most high-stakes situations, as the Toronto Star opined in an editorial. After all, it's his job as the nation's top privacy watchdog and advocate.
Mangat from the BCCLA contends that the court's ruling brings up questions that the majority justices didn't consider. For instance, "What happens if the phone has a password but the arrested person refuses to give it to police? The court only addressed this in passing," she said.
Bill C-13, the government's controversial "cyber-bullying law," recently given royal assent, contains a provision allowing police to "remotely hack into computers, mobile devices, or cars in order to track location or record metadata." While it hasn't gained much attention, the National Post reported on this portion of the law this summer.
Hacking into any suspect's phone, car, or computer would be subject to judicial approval. But it's conceivable that police could use that power to track a suspect's location or metadata before an arrest, and then obtain full warrantless access to a suspect's device upon arrest.
The recent 4-3 ruling does attest to the Supreme Court's divided nature on this issue. Central to the minority opinion was the inescapable fact that our digital devices now often contain a great portion of our lives. Here's a passage from the opinion (more on Geist's page):
"It is not just the device itself and the information it has generated, but the gamut of (often intensely) personal data accessible via the device that gives rise to the significant and unique privacy interests in digital devices. The fact that a suspect may be carrying their house key at the time they are arrested does not justify the police using that key to enter the suspect's home. In the same way, seizing the key to the user's digital life should not justify a wholesale intrusion into that realm."
The minority opinion went on to conclude that the four conditions for warrantless phone searches provided unclear and "overly complicated" guidance to police, an opinion the BCCLA echoed. Alas, for privacy advocates, the decision stands as is.
As the Star noted, our current government axed the long-form census because it was a "coercive and intrusive" invasion of privacy. But the libertarian fire that burned down StatsCan's crowning achievement is nowhere to be found today, with privacy-killing bills C-13 and S-4 on the books, and government tenders out for 24/7 social media monitoring. So we shouldn't expect legislative action anytime soon to protect citizens from warrantless phone searches.
The Supreme Court's decision won't affect Canadians, criminal or otherwise, who don't get arrested. But it's still good to know what to do to protect your privacy in case you do find yourself, say, kettled and arrested at a major urban intersection.
According to Mangat, putting a passcode on your phone before getting arrested is a good bet to protect your privacy. It may not legally stop police from searching through phone contents, but it will slow them down.
Chris Malmo is a donor relations coordinator at OpenMedia.
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