The Supreme Court of Canada issued its decision in R. v. Fearon today, a case involving the legality of a warrantless cellphone search by police during an arrest. Given the court’s strong endorsement of privacy in recent cases such as Spencer, Vu, and Telus, this seemed like a slam dunk. Moreover, the U.S. Supreme Court’s June 2014 decision in Riley, which addressed similar issues and ruled that a warrant is needed to search a phone, further suggested that the court would continue its streak of pro-privacy decisions.
To the surprise of many, a divided court upheld the ability of police to search cellphones without a warrant incident to an arrest. The majority established some conditions, but ultimately ruled that it could navigate the privacy balance by establishing some safeguards with the practice. A strongly worded dissent disagreed, noting the privacy implications of access to cellphones and the need for judicial pre-authorization as the best method of addressing the privacy implications.
The majority, written by Justice Cromwell (joined by McLachlin, Moldaver, and Wagner), explicitly recognizes that cellphones are the functional equivalent of computers and that a search may constitute a significant intrusion of privacy. Yet the majority cautions that not every search is a significant intrusion. It ultimately concludes that there is the potential for a cellphone search to be intrusive, it does not believe that that will be the case in every instance.
Given that conclusion, it is prepared to permit cellphone searches that are incident to arrest provided that the law is modified with some additional protections against invasion of privacy. It proceeds to effectively write the law by creating four conditions: 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.
One saving grace in the majority’s decision is that rejects the notion that password-protected phones legally enjoy greater privacy protection than non-protected ones. The majority states:
I pause here for a moment to note that some courts have suggested that the protection s. 8 affords to individuals in the context of cell phone searches varies depending on whether an individual’s phone is password-protected. I would not give this factor very much weight in assessing either an individual’s subjective expectation of privacy or whether that expectation is reasonable. An individual’s decision not to password protect his or her cell phone does not indicate any sort of abandonment of the significant privacy interests one generally will have in the contents of the phone. Cell phones – locked or unlocked – engage significant privacy interests.
The dissent – written by Karakatsanis and joined by LeBel and Abella – unsurprisingly agrees on the issue of password protection but also offers a much stronger defence of privacy. It explicitly recognizes the connection between digital devices and privacy:
the cell phone acts like a key or portal which can allow the user to access the full treasure trove of records and files that the owner has generated or used on any number of devices. 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. Indeed, personal digital devices are becoming as ubiquitous as the house key. Increasingly large numbers of people carry such devices with them everywhere they go (be they cell phones, mobile computers, smart watches, smart glasses, or tablets).
The dissent proceeds to adopt the position that complicated conditions are no substitute for effective privacy. It therefore concludes that warrants provide the right balance:
The intensely personal and uniquely pervasive sphere of privacy in our personal computers requires protection that is clear, practical and effective. An overly complicated template, such as the one proposed by the majority, does not ensure sufficient protection. Only judicial pre-authorization can provide the effective and impartial balancing of the state’s law enforcement objectives with the privacy interests in our personal computers. Thus, I conclude that the police must obtain a warrant before they can search an arrested person’s phone or other personal digital communications device. Our common law already provides flexibility where there are exigent circumstances – when the safety of the officer or the public is at stake, or when a search is necessary to prevent the destruction of evidence.
While the case does provide some helpful language on the importance of privacy, the recognition that cellphones and computers are now functionally equivalent, and that password protection should not be a pre-requisite for privacy protection, the decision is a setback for privacy in Canada. With the court having just concluded in Spencer that a warrant is needed to access subscriber information, it should have maintained that approach by similarly requiring one for cellphone searches during an arrest. In trying to establish the legality of some warrantless cellphone searches, it has replaced the important safeguard of a judicial authorization with conditions that do little to protect privacy while complicating the obligations of law enforcement.
Right, so the expectation of privacy is not dependent on a password being in place.
But absent a warrant/court order/etc. (e.g. – in a traffic stop), are we under any obligation to surrender the password?
PG
PG, I have a cop in chat, and he says no, we are not under any obligation to surrender any password in the course of a normal arrest.
So the language about how we still have an expectation of privacy without a password is academic, IMO.
If:
i) police are allowed to search your phone for evidence upon arrest, and
ii) there is no difference in terms of privacy protection between a password-locked and unlocked phone
… then what prevents police from bypassing a password lock by connecting the arrestee’s phone to a computer, cloning the contents (or some portion thereof), and searching it that way?
Also would courts have any evidentiary requirement that the stuff they find on your phone pertain to the specific crime you were arrested for? E.g. if you’re arrested on suspicion of impaired driving, police search your phone and find evidence you’re dealing drugs, is that admissible in court? Is it grounds for a search warrant on your house?
It seems like full-device encryption is (officially) the only answer for anyone concerned about cops trolling their phone for evidence.
Still, only if the phone might be implicated in the crime then the encryption keys or passwords should be made available ASAP and if they don’t hand them over them that would be obstruction. Serious crimes only. Robbing a jewellery store is serious business and could of ended tragically for all involved.
Even though drunk driving is a serious crime I don’t think they would have the right to search your phone but they will anyways, you know they will, I would. They could find a murder, but then they would have to approach a judge and tell them off the record what they did and ask the judge how to procede, there has to be leaway when one crime, illegal search and seizer, under weighs another crime, murder. It all depends what officer wants to take the chance or not. It could ruin someones career.
Technically, I believe the wording / restrictions on this warrantless search is limited to specific evidence which is incident to the arrest.
Having said that, there’s something called ‘evidence reconstruction’ where they get a tip from somewhere they shouldn’t (mass surveillance, unlawful searches, etc.) then come up with a scenario where they could re-find that evidence legally.
It’s a problem.
As far as I know, the only court decision on this was from a Quebec court (not sure what level of court) and they said “no, you don’t have to provide your password”.
Thanks Zladakan! And to be fair, if your cell were chock full of personal data, why wouldn’t you have a password enabled (primarily to protect against loss)?!?
That Darwin guy was a pretty smart cookie.
PG
Would you also object to the search of a locked (or unlocked, for that matter) briefcase containing papers?
Briefcases can contain physical weapons, phones do not. If they want to take the back off if phones with battery covers to check for a knife, go ahead.
But you wouldn’t allow a search for evidence pertaining to a crime?
Keep in mind that this is in the context of an arrest. If the police have already arrested the individual, and believe that [some container they’re carrying] contains important evidence, it seems to me that obtaining a reasonable warrant from a judge would not be difficult.
But is it not ipso facto likely that a [container] carried by the arrested party may reasonably be thought to contain evidence pertinent to that crime? It seems to me that that is what this ruling is, a blanket assertion of reasonableness for search on those grounds.
It is not likely, it is certainly often possible, and the only person possibly able to make that determination is a judge. It is not reasonable to assume that an arrestee’s phone carries pertinent evidence unless of course the arrestee was observed using the phone in the commission of the crime, any more than for the arrestee’s car, office, home or home computer.
I don’t see why judges are so much better than police officers in such a matter. The judge is certainly the one to decide the admissibility of evidence, but why should a police officer not be able to exercise judgment?
As to the general reasonableness of there being evidence of crime on an arrestee’s phone, I do think most people would disagree with you on that. It seems to me there is a high probability that someone committing a pre-planned crime will have discussed it with other parties beforehand.
Jack Mitchell, it usually has to do with maturity and experience of a judge over a cop. Education also has a lot to do with making appropriate decisions. Most cops are probably in their 20s – 30s. Most judges have been around the block a few times and they have large support systems that police don’t have.
There should be a need for a warrant. If the Police cannot convince a Judge that there is a reasonable cause to suspect there may be information on the phone, in the same way that they need to convince a Judge that there may be evidence within a home, then there should not be the legal ability to search a cell phone by the Police either.
But they do not need to convince a judge before they’re allowed look for evidence in a home if they are already inside the home and arresting someone there.
Wrong, police need to convince a judge and get a warrant to enter someone’s house to arrest the person (which implicitly includes authorization for a search incident to arrest).
Without authorization, the only way a police officer can enter someone’s house for an arrest is under exigent circumstances (e.g. someone’s safety is at risk), in which case your point is moot. If exigent circumstances exist, the police can arrest and search your phone no matter where you are.
It must happen fairly often that police are inside a home (having been invited in without a warrant) and witness a crime taking place there (say, somebody slugging somebody else), and then they are able to make an arrest AND collect evidence on the spot, without having obtained a warrant from a judge at any point.
I can’t say; that’s an empirical matter.
Either way, it’s an exception to the general rule that a warrant is required. There are strict rules around the authority of police to enter someone’s house without a warrant to make an arrest. They need reasonable grounds that someone is at risk of imminent bodily harm or that evidence is going to be destroyed, and that it would be impractical to obtain a warrant.
If they can’t meet those conditions, then they need a warrant.
Right, that’s to do with the sanctity of the home. The issue at hand is whether they can read your cell phone when they arrest you.
The “sanctity” is that of the arrestee and his or her property; it is not specific to homes.
So are you against the searching of glove compartments?
You’re right.
The original post was drawing an analogy between somebody’s home and a person’s cell phone, similar to the dissent. When the police arrest somebody and find a house key in their pocket, “search incident to arrest powers” do not allow the police to go and search the person’s house. This is because a person’s house contains all sorts of private information that is likely unconnected to the crime. That’s why the police need a search warrant.
The same exact logic applies to cell phones. It contains multitudes of information everybody conceals and expects privacy over. It is arguable that a person has a greater expectation of privacy over cell phone data (like computer data) than they do over the contents in their house. Therefore, I would argue that without a warrant or exigent circumstances, the police have no more justification to search through a person’s private informational data than they have to enter a person’s house for a search and/or arrest.
So, to take an analogue analogy, you’re saying that if you’re arrested and have three pages of foolscap on you, it’s reasonable for police to search (i.e. read) those, but if you have twenty volumes of personal papers and miscellaneous files in your trunk it’s not reasonable for police to search those?
No I did not say that.
What constitutes a valid search incident to arrest depends on the circumstances. In all cases, the police need to justify it on officer safety or evidentiary grounds.
My point is that, like a person’s home, under no circumstances is it justified for the police to search a person’s cell phone incident to arrest. I think the same should apply to a person’s computer.
Whether that applies to a box of papers in the trunk of somebody’s car depends on the circumstances. There’s abundant case law on searching vehicles that may provide a more direct answer.
I perceive your point because you keep stating it; I am trying to find the rationale. Namely, does scale matter? A smartphone might contain one’s whole life – it might be the world’s biggest box of papers – or it might be just a few postcards. It is not at all clear to me that because somebody puts potential evidence into a huge box instead of a small one, the box is therefore off-limits. Or at least I’d need to hear why.
My second paragraph should read: “[…absent a warrant or exigent circumstances,] under no circumstances is it justified for the police to search a person’s cell phone incident to arrest. I think the same should apply to a person’s computer.”
Some people also don’t keep a lot of things inside their homes. Does that mean the police should be able to search that person’s house without a warrant? Houses are considered a zone of privacy, regardless of whether certain individuals have a subjective expectation of privacy.
I can tell you that vehicles do not enjoy the same privacy protections as a house. However, if you are asking why cell phones should enjoy uniquely heightened privacy protections, I suggest you read the dissent of this case, paragraphs 128-134.
They state the obvious. But nothing they say there addresses my question of why searches of huge boxes should be when searches of small boxes are OK.
Police searching a house (with a warrant) are likewise apt to discover irrelevant but highly personal material; a warranted search for evidence of crime A might well be very intrusive and might well turn up evidence for crime B. I’m far from an expert, but I would be surprised if evidence for crime B would be inadmissable because it was not the original object of the search.
In essence, the reasons are:
(1) cell phones store immense amounts of data. In fact, the amount of data is limitless, much more than you can keep in a box in your trunk (so yes scale matters);
(2) cell phones keep records of almost every detail of our lives; and
(3) cell phones provide a gateway to information on other devices and servers; and they might continue to produce private information after being seized.
There’s no rule saying police can search big boxes, but they can’t search little boxes. The answer is: it depends. But you are going way off track with that analogy.
Police can use evidence of other crimes found during a search incident to arrest. That’s not the issue at all. The issue is whether cell phones deserve heightened protection.
Yeah but the only legal as opposed to political way we can answer that is by analogy.
As to the politics, I don’t personally desire to give criminals, whether drug dealers or bankers, a place where, because they also enjoy sexting, they can store limitless evidence of wrongdoing immune to searching.
*Police may also use evidence found during a warranted search as well.
Nothing is “immune to searching”. The issue is when we need the added layer of judicial authorization.
So you are OK with the authorities having access to people’s whole experience — see paragraphs 128-134 of the dissent — so long as there is a warrant for some small piece of evidence that might or might not be there?!
I can tell you that’s not how warrants work.
However, if you’re asking if I prefer police searches with oversight over those without oversight, then I think you can deduce my answer pretty quickly.
Garrett, all the police need to get into your home to look around is a friend on the street corner with a cell phone. : )
I’m pretty sure you missed the point.
Echoing others comments here….
Unfortunately this ruling, while emphasizing that lack of password protection does not signify abandonment of privacy rights, did not deal with how police should deal with phones that ARE password protected.
Any person with any concern for privacy will password protect their phone. And I would never give my password to the cops without a warrant. I see nothing in the ruling that actually allows them to compel you to unlock your phone for them.
I expect this will be back before the court sooner rather than later.
IANAL and stuff but in the US, I think password are protected under the 5th amendement. This “http://en.wikipedia.org/wiki/Self-incrimination” says we have some kind of protection against self incrmination, so, password should fall under that category. No one/thing can compele you to give up your password.
then again IANL and stuff.
Does this mean the rules for searching an an ipod touch would be different than the rules for searching an iphone ?
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I think the Supreme Court Of Canada was correct in their decision. They are highly intelligent, they don’t get to where they are by being stupid. If someone is involved in a crime and they are using their phone to record anything involving that crime then by all means they shouldn’t need a warrant to search and seize anything that is of importantance to that crime and other crimes they have commited. You never know, you might stumble across a murder or something. As long as they record everything they find and do to that phone meticulously password or not. They should be forced to hand over all passwords related to that phone. You have to remember that law enforcement will access that phone anyways wireless or not if they feel that that phone was used in a serious crime. You would have to be seriously out of touch with crime if you were a judge and you said no searching criminals phones. Don’t think for a minute that your service provider doesn’t randomly search users phones and pass on that info if they feel you are using that phone for criminal activities. Of course the do, I would, I wouldn’t care for a second if The Supreme Court Of Canada said not to, would you? Let’s get real here, the court rulings against law enforcement not to invade peoples privacy are not written in stone, they are just warnings to law enforcement to watch their step and to cover their tracks a little better. Follow the money. Thanks for reading.
They are highly intelligent, they don’t get to where they are by being stupid.
No one is debating that. But still, no one is impervious to errors of judgement , and no one ca think of all the possible consequences of their decisions (there’s likely –not certainly– an unintended consequence to every act/decision).
Very true.
I was talking about honest cops in a perfect world where they could look through your personal information and keep it to themselves and not stash it away in a database to sell it or try to use it against you later.
well, in that perfect world we wouldn’t need cops, would we?
There are some things that are prohibited by law not because they are inherently bad, but because of the potential abuse/side effects (speed for example). As we the “civilians” (mind you cops are civilian too) are prohibited from doing things because of the potential abuse/nasty side effects, those who enforce the law must be held to at least the same standard -prevented from doing some things with potential devastating consequences, by default-.
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SInce one comment mentioned US 5th amendment rights…
How does this decision impact Canadian rights under the Canada Evidence Act regarding self-incrimination?
@Jack Mitchell: The difference between the police and judges is that the police “work for” the prosecution and are therefore not impartial as a judge is.
Sure you might think/wish the police are impartial investigators, but in reality they are not. When is the last time a officer investigated a crime on behalf of the accused?
I think by default the judge wants to side with the prosecution. Most judges have been in the shoes of the prosecution or in the field of law enforcement so they are probably a bit bias against the defendant, depending who the defendant is. I think it would be very political also. People like to say they are not bias one way or another but it is human nature to be. Protecting your own kind. Everybody has their own beliefs and their own agenda whether they want to admit it or not, and most of those agendas are hidden. But when the evidence outweighs the prosecutors case then they have no choice to side with the defendant or risk being hypocritical, just like in the US, they will not prosecute their kind when they are murdering in the line of duty. Thank god are courts are much better than theirs.
Oh wow! In all of the shock and trauma of being arrested I seem to have forgotten the PIN to unlock and decrypt my phone.
Minority report;
Just use ATIP and request records.
Pretty evident what already happens (I’ve received mine).
RCMP go through your phone prior to the arrest. How else do you think they find out who to go after?
Look up “dated” systems “tempest” “Echelon” The systems are triggered by key words. RCMP simply setup a “dictionary” to search. So if there is a jewelry heist they search key words like “Ice, bling, etc etc”
If they want to masturbate they search “nudes” and include a search for pics. Think of it as google for phones/electronic devices. If you’re in the vicinity and your phone has a keyword that they want, your phone will usually “blip”
If you want to have fun then fill your texts with stupid terms like Jihad, or Michael Zehar Beibeau. You can also include pictures of your naked genitals.
Anyways, it’s a screwed up system that is “highly” accurate. Problem is all the residual information the RCMP find along the way. I.E. single girls playing on their cameras or taking selfies. Their exwives new husband etc. etc.
It’s Live action 24/7.
The best is if you’re involved in any sort of legal issue with the police. Then they get full surveillance without warrants (not legal but proven!). Then prior to court cases they already have your arguments. But what’s to fear if you’re telling the truth? Their reprisal is frustrating.
If you’d like another tidbit do you know what the RCMP does for people that they want to remain involved with?
It’s called an open warrant or a “continuing investigation.”
I.E. you’ve been charged with something and proven innocent. Well they can continue their investigation and that means open warrants.
I believe that the implications of this decision will reach much further than anticipated in the future. Remember that arrest does not equal charge or prosecution. It’s merely an arrest, so the requirements that an officer needs to meet are exceptionally low in order to perform a search of your devices.
Lets think about this, when police have the means to read your mind, will they be able to do so legally upon arrest? (this technology is well developed — see Stephen Hawking’s latest upgrades)
Our brains may not be digital devices, but they are biological devices, which operate similar to a digital device in the sense that they process information, and hold data in memory. Even those lines are being blurred with current advancements in technology, with biological components being developed.
So if the police are allowed to search through the memory of your devices, through Accessio cedit principali, they are in essence searching through the memory of you. In many cases, your phone will remember private information better than you yourself will. Maybe this would depend upon if you have the phone attached to you via a belt clip or lanyard, I’m not certain, but the implications are pretty clear imho.
So if your not plugged into the grid then what your labeled a Lone Wolf and your topic # 1 on CBC News for a day…no doubt..eh!
oops I think I just verbalized a thought crime.
Dang I mentioned thought crime no passport for me.
Jeeus I typed Lone Wolf, thought crime and passport my ip is being shipped to NSA for “special” attention.
except: in modern times, the bad and good guys have sort of switched roles!
I consider most authority figures to be bad-guys or soon-to-be bad guys. power corrupts. period! so much power today for authoritarians, its guaranteed they will turn bad. no doubt at all in my mind. and look what we have, today, in our ‘law enforcement’ word! just read the news for a few weeks and you’ll get a sample of the topsy-turvey world we now live in.
“dont talk to cops” is a modern thing. it never used to be that way when I was growing up, but it sure as hell is a ‘thing’ now!
that’s just one example of the ‘new normal’ we find ourselves in.
I really don’t worry about terrorists or other boogeymen. but I do worry about thugs with deadly force and some random thing that would cause them to put MY LIFE at risk for some utter bullshit reason or power-trip.
I don’t need protection from the so-called bad guys. I would, however, like protection against the so-called good guys. and that’s what our body of laws USED TO BE ABOUT.
checks and balances are non-existant, now-adays.
(unless you’re rich and powerful, of course).
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I really agree with this decision. For the most part, all that will be on a phone is private messages and pictures. If there is reason to believe that some texts may be incriminating then I have no problem if the officer has a warrant.
I actually heard about a story where a police officer took a gals phone and sent himself some nude pictures of her without her knowing. That’s messed up and I can see more incidents like that happening if this would have gone through.
Awesome article.
Brendon
Brendon,
How can you agree with the decision in one breath and then in another say you have no problem if the officer has a warrant? Do you actually understand the issue you are commenting on here?
And then you talk about a story where a police officer abused his warrantless access to a girls phone to steal things from it.
So how can you possibly agree with this decision?
this allows a WARRANTLESS search NOT a protection from WARRANTLESS search
Lets say some one goes in to a jewelry store and reaches in to the display cabinet and takes 10K + of merchandise and leaves on the way out gets filmed getting into has car including the plate
a few minutes later the cops pull the car what are the cops allowed to search?
is the brief case searchable what about a binder, how about the GPS computer on the dash all might contain personal information + evidence