Police cellphone searches a privacy concern

Court rules warrants no longer required, if search related to reason for arrest

Despite a recent Supreme Court of Canada decision giving police wider powers to search cellphones after an arrest, Ridge Meadows RCMP haven’t indicated how they’ll respond to the new ruling.

On Dec. 11, the court ruled that police can search the cellphone from someone who’s been arrested without first getting a court ordered search warrant.

The ruling allows a warrantless search of a phone provided it’s carefully documented and limited to the immediate reason for the arrest.

Some Maple Ridge residents are uneasy about the change.

“I don’t think they should be able to search my phone,” said Mike Staub of Maple Ridge.

But he could accept police searching phones if they’re related to the reasons for arrest.

“Have fun getting into my phone,” he added, noting his has a thumbprint password.

“I just don’t like that issue,” added Ian MacIntyre. “A lot of our personal information is on our phone. I just don’t like my personal information going out to anybody.”

One area that’s becoming difficult to interpret is the blurring of the lines between a large cellphone and a small tablet or notebook computer.

SFU criminology professor David MacAlister said the decision doesn’t take into account the power of cellphones that people carry.

“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 little bit and see what happens.”

Tylyn Hardman of Pitt Meadows still wants police to require a warrant in order to search phones.

“That can be taken for granted in some circumstances. The laws are put in place for a reason.”

Marlyse Neukomm, also from Maple Ridge, wasn’t bothered by the court decision.

“For me, it won’t make a difference because I have nothing to hide.”

MacAlister said the ruling appears to limit the search to recent text messages, e-mails, photos and incoming and outgoing 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 decision 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.

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.

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