[News] Supreme Court of Canada - OK for Police to Search your Cellphone on Arrest - Mostly

Reactions
299 37 13
#1
The title says most of it: SCC rules warrantless cellphone searches OK

The caveat (in our favor) is this:
In its precedent-setting, 4-3 ruling, the country's top court says the search must be directly related to the circumstances of a person's arrest and the police must keep detailed records of the search.

Three dissenting justices said the police must get a search warrant in all cases except in rare instances where there is a danger to the public or the police, or if evidence could be destroyed.
So... whatever that means. Still a negative IMO for Canada.
 

GasBandit

Staff member
Reactions
7,786 1,665 33
#2
Wellll, I'm of two minds on this. A cell phone is not a house, it's more like a briefcase. You don't have to get a warrant (at least in the US) to search a briefcase, though you do (in some states, mostly the ones I've lived in at least) have to "ask" first, and if they say no, then you have to arrest them to do the search (lots of "mind if I have a look in your trunk, sir?" type stuff going on).

I say, if a person's already being ARRESTED, then yes, anything they are carrying should be searched. But only if it is part of an arrest.. no "stop and frisk" for cell phones.

Also, here, you don't have to give them the code to unlock the phone/laptop/etc :D
 
Reactions
483 252 1
#3
At least 20 years ago in Texas, a cop needed a search warrant to go through a briefcase. I don't know if it has changed since then.
 
Reactions
299 37 13
#4
Also, here, you don't have to give them the code to unlock the phone/laptop/etc :D
And that's the part I haven't seen analysis of yet: are you compelled to unlock (or in many cases including mine, decrypt) it? To what extent are you compelled? Self-incrimination? I haven't seen that addressed.
 
Reactions
2,912 832 25
#5
I believe (in the US anyway) you are required to get a search warrant before you can get into any secured container/area (locked briefcase, locked glove compartment), but if it's unlocked then this does not apply.

This is a point of contention because so much of today's smartphone data does not actually reside in the phone itself, the phone is merely a portal to other locations, and the legal question is one of whether or not accessing the contents of a phone found on a suspect should automatically allow access to all of that other nonresident data, as well.

Also a recent ruling has said that you cannot be compelled to give up your passcode (5th amendment protections against self-incrimination and all that) BUT you can be compelled to give up a fingerprint, so presumably this means you could be compelled to unlock a phone (or other device) which is biometrically secured.

--Patrick
 

figmentPez

Staff member
Reactions
3,430 635 7
#6
A cell phone is not a house, it's more like a briefcase.
A briefcase fitting Mary Poppins, through which you can pull out entire file cabinets. The law needs to think about the future when considering how it rules on searching the information on portable devices. Who knows what sensors will be in future devices, or what data they'll store in order to be helpful. If a cellphone is monitoring your health, should all your biometric history be available without a warrant, just because it's technically being carried around with you? I think such information should be considered private and privileged (regardless of if a doctor is currently monitoring the data). I'm sure there are a lot of other possibilities that I haven't thought about, as well.
 
Reactions
118 4 0
#7
Also a recent ruling has said that you cannot be compelled to give up your passcode (5th amendment protections against self-incrimination and all that) BUT you can be compelled to give up a fingerprint, so presumably this means you could be compelled to unlock a phone (or other device) which is biometrically secured.
I wonder if this has ever been challenged/addressed in court. Presumably it has come up before with biometrically-secured safes.
 
Reactions
1,214 128 0
#8
I wonder if this has ever been challenged/addressed in court. Presumably it has come up before with biometrically-secured safes.
A judge of the Virginia Circuit Court ruled in a case that an individual is not required to reveal his passcode to authorities in order to unlock that person's smartphone. However, it will be legal for the police to demand the suspect to provide the fingerprint that unlocks the said smartphone. (via TechTimes)
 

GasBandit

Staff member
Reactions
7,786 1,665 33
#9
A briefcase fitting Mary Poppins, through which you can pull out entire file cabinets. The law needs to think about the future when considering how it rules on searching the information on portable devices. Who knows what sensors will be in future devices, or what data they'll store in order to be helpful. If a cellphone is monitoring your health, should all your biometric history be available without a warrant, just because it's technically being carried around with you? I think such information should be considered private and privileged (regardless of if a doctor is currently monitoring the data). I'm sure there are a lot of other possibilities that I haven't thought about, as well.
You make good points.
 
Reactions
118 4 0
#10
A judge of the Virginia Circuit Court ruled in a case that an individual is not required to reveal his passcode to authorities in order to unlock that person's smartphone. However, it will be legal for the police to demand the suspect to provide the fingerprint that unlocks the said smartphone. (via TechTimes)
Unlock it with the fingerprint directly, or provide the print so police can create a fingermold and try to unlock it themselves?
 
Reactions
2,912 832 25
#11
Unlock it with the fingerprint directly, or provide the print so police can create a fingermold and try to unlock it themselves?
Presumably they could compel the suspect to do so directly since the whole "fashion a duplicate" is an obvious procedure that adds nothing but time to the process.

--Patrick
 
Reactions
229 10 0
#12
TouchID gets disabled and will require your passcode after no use for 48 hours or if the phone is reset. If you find yourself in that situation, those are your two best options for the time being.
 
Reactions
682 255 4
#13
Presumably they could compel the suspect to do so directly since the whole "fashion a duplicate" is an obvious procedure that adds nothing but time to the process.

--Patrick
I would hope no other, higher, court would uphold that logic, which requires ignoring the reason the cops are fingerprinting us is for future identifications, their own records.
 
Reactions
2,912 832 25
#14
TouchID gets disabled and will require your passcode after no use for 48 hours or if the phone is reset. If you find yourself in that situation, those are your two best options for the time being.
I would hope no other, higher, court would uphold that logic, which requires ignoring the reason the cops are fingerprinting us is for future identifications, their own records.
I would hope no higher court would uphold that logic either, but I assume they would simply because of that 48hr window* potentially closing before they could get the mold made, etc.

--Patrick
*The phone doesn't even need to be reset. Just turning it off and back on again will activate the passcode lock.
 
Reactions
229 10 0
#15
I would hope no other, higher, court would uphold that logic, which requires ignoring the reason the cops are fingerprinting us is for future identifications, their own records.
But as mentioned in the article evilmike posted you can be compelled to provide keys. I don't think the judge made any kind of left field new ruling, the fingerprint is effectively a key, and you can be copelled to provide both biometric data (i.e. fingerprints and DNA samples) and keys so you can be compelled to provide your fingerprints for the purpose of unlocking your phone. I suspect we'll see more on this down the road and at least a warrant is required here in the states.
 
Reactions
299 37 13
#16
Our resident all-things-digital-privacy advocate, Michael Geist has weighed in: Supreme Court’s Privacy Streak Comes To End: Split Court Affirms Legality of Warrantless Phone Searches Incident to Arrest

And as for some of the comments above:
A briefcase fitting Mary Poppins, through which you can pull out entire file cabinets. The law needs to think about the future when considering how it rules on searching the information on portable devices. Who knows what sensors will be in future devices, or what data they'll store in order to be helpful. If a cellphone is monitoring your health, should all your biometric history be available without a warrant, just because it's technically being carried around with you? I think such information should be considered private and privileged (regardless of if a doctor is currently monitoring the data). I'm sure there are a lot of other possibilities that I haven't thought about, as well.
Addressed by the dissenting minority opinion! From the article, which he quotes them:
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).
So just under a majority of them agree with you Pez. Just not a majority. :( I actually like the judge's answer even better. Just because you have your house key on you when arrested, that means the cops get to search your house? No, it doesn't. Same standard for phones. I like it. I'm going to use that when discussing this with people.

Also, from the comments:
Question - But absent a warrant/court order/etc. (e.g. – in a traffic stop), are we under any obligation to surrender the password?
Reply - 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”.
Now that's in replies, not cited, but still good news if true.



X
 
Top