Turns out the United States really is the land of the free, at least when it comes to cellphones and whether police officers should be allowed to search them without a warrant.
Earlier this year, the U.S. Supreme Court ruled that police require a search warrant to search someone's cellphone, even after that person has been arrested and the phone is in their possession. Yet the Supreme Court of Canada went in the opposite direction Thursday, ruling police officers can, without a warrant, conduct limited searches of a suspect's cellphone, following specific guidelines. Those guidelines state that the police must only search a cellphone if it is directly related to the suspect's arrest and a precise record of the actual search must be kept.
The Canadian judges bought the argument that a cellphone is no different from a wallet or a briefcase found in the possession of a suspect and subject to a search but there's no comparison. Thursday's ruling allows police to obtain evidence they normally would have only been able to access through a wiretap, simply by turning on a suspect's cellphone. Texts and emails on a cellphone document what was said, who it was said to and when it was said. While they don't record phone calls, they do keep track of the time of both incoming and outgoing calls and with whom those calls were with.
It's a gold mine for investigators in Canada and now they get to acquire all of that information for free, rather than having to convince a judge that this invasion of privacy is legally justifiable before proceeding.
Today's smartphones are capable of providing so much more information to police. The GPS feature could be used to inform officers of the recent whereabouts of a suspect. So could the appointment calendar. Incriminating photos, videos and text documents in the phone's memory could also be used.
It's only a matter of time before Canada's top court hears a case where officers looking for evidence of one crime, following the guidelines of how to search a suspect's phone, discover incriminating evidence of other, non-related wrongdoings on the phone. Or maybe they will simply discover embarrassing details about the suspect's private life and use those details to wring out a confession.
The temptation for abuse by earnest police officers will be enormous and it's a temptation they won't likely be able to resist. While so many people surrender much of their privacy on social media sites like Facebook, that's no justification for the government, law enforcement or anyone else to have a blank cheque to go snooping.
The irony is that Canadians might still be better protected from the prying eyes of government and police than American citizens. As the documents released by Edward Snowden and subsequent investigative reporting revealed, major U.S. telecommunications carriers have willingly turned over massive amounts of domestic and foreign communications - voice, text, email and even Skype chats - to government agencies when asked to do so, without legal oversight. While Snowden's documents also revealed that Canada has worked with the U.S. on collecting signal intelligence, there was no evidence that Canada has been ordering domestic carriers to turn over customer data except in regards to specific situations and individuals and under the order of a judge.
Citizens do have one more card to play and that is to make their phone password protected. Individuals could still have the choice to fully cooperate or not with a police investigation but refuse to provide the password to their cellphone without a court order. Some people might see this as disrespect for police officers and disregard for the important work they do. That's not the case. Rather, it's the assertion of an individual's legal expectation of personal privacy, to protect themselves from incriminating themselves and from being forced to contribute to a criminal investigation. A judge, in accordance with the law, should decide when and how the duties of police officers should supersede an individual's rights, not the officers doing the investigating.
