A Supreme Court of Canada decision granting police wider powers to search cellphones after an arrest raises troubling questions for privacy and fails to take into account the power of the devices most people carry in their pockets and purses.
That’s the response of SFU criminology professor David MacAlister to the high court’s 4-3 ruling Thursday.
“The court has taken a fairly naive view of what a cellphone is,” he said Friday. “No doubt police are going to push the boundaries a ltitle bit and see what happens.”
The ruling allows a warrantless search of a phone provided it’s carefully documented and limited to the immediate reason for the arrest.
MacAlister said that appears to limit the search to recent texts, emails, photos and calls, not older ones or an exploration of data that may be in various other smartphone apps.
A deeper search of a smartphone could still be done, but would require a warrant.
MacAlister said it’s unclear exactly where the line would be drawn between recent information related to the arrest – like a photo from a crime scene or a text to a crime boss confirming a job was done – and older data, including unrelated personal texts or intimate photos officers might stumble upon.
“Are police really going to be careful to just look at the last one or two photos taken? That causes me concern.”
MacAlister said the ruling appears to run contrary to a 2013 court ruling that all computer searches require a warrant because of the intrusiveness of searching all the private and personal information they contain.
He questions whether the cellphone or computer rules would apply to tablets.
MacAlister said technological lines between computers, phones and tablets have become increasingly blurry and there’s no logic in the law attempting to redraw them.
“There’s a real grey area now between what constitutes a phone and what constitutes a personal computer,” he said. “I personally use my cellphone for pretty much everything that five years ago I would have done on a computer.”
Investigators could potentially gain access to everything from contact lists to web browsing histories to GPS location information through smartphones.
Also unclear is how police officers would enforce the new power to search phones, especially in cases where users have password protection to access their phones.
“I’ve got one of the new iPhones with a thumbprint reader,” MacAlister said. “What about those? Can they force people to actively facilitate a search against them?”
The decision dismissed an appeal of the 2009 armed robbery conviction of a Toronto man who argued police violated his charter rights when they searched his phone without a warrant and found a “we did it” draft text.
The court ruled warrantless searches are allowed if the arrest is lawful, the search is related to the arrest and based on a valid law enforcement purpose.
That would include preserving evidence, discovering new evidence and locating additional suspects in situations where the investigation will be significantly hampered without a prompt search of the phone.
Three judges dissented and argued all such searches require a search warrant, except in rare cases where there’s a danger to the public, police or evidence.
Raji Mangat, a lawyer with the British Columbia Civil Liberties Association, said the decision was a disappointment because the court failed to strike the right balance between privacy rights and law enforcement.
“This type of technology is fundamentally different from other types of place searches, like searching a briefcase or searching a filing cabinet.”
– with files from The Canadian Press