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Digital Privacy and Cell Phone Searches

Cell phones have become an ever present reality of life, as we constantly carry around devices containing a signficant amounts of personal data. The information on these devices can often be used as part of police investigations. For example, we often see police using cell phone tower data to triangulate a person's location based on their phone. Text messages have become an increasingly common piece of evidence in trials, which leads to the question: can the police search my phone?

The answer, as in any good legal question, is it depends. The courts have been slowly catching up with new digital realities, and modifying tests based on searches of physical property to deal with the higher privacy interest that attaches to a phone. In 2014, the Supreme Court in R. v. Fearon dealt with the issue of cell phone searches incident to arrest in an attempt to balance the investigatory power of the police with a person's right to privacy. The Court ultimately found that a police officer can conduct a cursory search of a phone after a person is arrested, if the discovery of evidence or other suspects would be significantly hampered if they weren't able to search the phone incident to arrest. The Court also required that the search had to be related to its specific purpose and not go outside of those boundaries, and that officers take detailed notes of the search.

What this means in real terms is that, absent a warrant, police can do a brief search of a cell phone as part of a lawful search, looking at things such as recent texts or emails. They cannot, however, compel a person to give their password, much to the chagrin of the Canadian Association of Chiefs of Police who have called for a bill that would force people to give their passwords. What the police can do, however, is seize the phone and obtain a warrant to search it in full, including breaking any passwords that might exist. Still, it's probably a good reason, among many others, to make sure your phone is password protected.

A new question that has arisen is the privacy interest in a sent text. In the case of R. v. Marakah, which was argued before the Supreme Court of Canada in April, the accused had sent a text to his co-accused that implicated him in gun trafficking. He sought to challenge the search warrant, but given that the phone that was searched was his friends' and not his, the trial court found that he had no standing to do so, since he would not have had a reasonable expectation of privacy in a sent text. The Court of Appeal of Ontario agreed, saying that once a person has sent a text, they can no longer reasonably expect that it will remain private, given that it is now within the control of the recipient. The case raises interesting issues surround digital privacy, trying to fit traditional frameworks of searching physical property in line with new technological social norms. 

The Supreme Court has reserved its decision, check back for monthly round-ups to find out when it comes back. 

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