Ruling permits cell search

A judgement presented by the Ontario Court of Appeal validated the search of an unlocked cellphone. (Photo by Cristina Ruccetta)

A judgement presented by the Ontario Court of Appeal validated the search of an unlocked cellphone. (Photo by Cristina Ruccetta)

Protect your cell phone with a password or the police might have the right to look through it, a court ruling ordered last week.

The Court of Appeal of Ontario, in a recent ruling for an appeal attempt by Kevin Fearon, has deemed it acceptable for police officers to search through a suspect’s cell phone upon arrest. Fearon was arrested in 2009 for a jewelry theft in Toronto when police found incriminating evidence on his cell phone upon his arrest. Officials, however, do not have the right to search through a phone that is password protected and will have to request a warrant in that situation.

“The cell phone was turned on and there is no evidence that it was password protected or otherwise locked to users other than the appellant,” the court document for Fearon’s appeal stated. “The photographs and the text message were not in plain view and it was necessary to manipulate the key pad in order to move the phone into its different modes.”

The document went on to state that if the phone were to be protected by a password it “would not have been appropriate to take steps to open the cell phone and examine its contents without first obtaining a search warrant.”

However, the public reaction about this ruling has been skeptical.

“I think it’s an appalling invasion of privacy rights,” explained Jesse Brown, a technology journalist and blogger for Maclean’s magazine. “It’s certainly not good for our privacy… if we think about kind of how these things play out in practice.”

“Personally speaking, a search of the phone would be more evasive to me than a search of a home,” he added. “It’s like saying, ‘oh you left your window open, so, of course, the police have the right to crawl in through and search your bedroom.’”

According to Brown, mobile devices are still sometimes declared to be a “thing” in the eyes of the law, whereas a computer or a “mini-computer” would be declared as a “place.” Therefore, a warrant would be required to look though the “place.”

Since the definition of a cell phone isn’t completely determined in legal terms, a warrant would not be required and cursory look will be allowed.

Brown did note that this ruling for this particular appeal doesn’t automatically give each police officer the right to check everyone’s phone, but what a cop can and cannot do with cell phones is still foggy. This ruling might also have the potential for abuse from authorities especially if the suspect in question isn’t aware of their full rights.

“It seems like that is something destined for abuse,” Brown said, adding that most people don’t password protect their phone because it’s an inconvenience. “It’s going to become the standard for certain people with their interactions with the police to expect that their phones are going to be searched.”

For Brown, this ruling signaled a need for the courts to have a discussion on the future of mobile and Internet security.

“I think a pretty obvious guess is that our lives going to be more intertwined with mobile technology and we’re going to be carrying more and more sensitive  personal data around with ourselves on these devices,” continued Brown.

“Rather them having the debate on what cops should be able to do, it should be what they are absolutely, explicitly not able to do.”

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