The Supreme Court of Canada has ruled that police can search mobile phones belonging to suspects, provided that they limit the scope of the search and follow certain steps. This verdict is widely regarded as a setback to privacy advocates.
The judgment was given regarding a case that concerned an armed robbery that took place in a jewelry store in Canada.
The police arrested two suspects, and while searching their cellphones, they discovered an incriminating message and an image of a handgun. Using this image and text message as evidence, the police managed to convict the suspects.
The suspects claimed that the search violated their constitutional rights because the police hadn’t obtained a warrant before searching their devices. The Canadian constitution protects its citizens against unreasonable seizure and search of personal devices like cellphones as such devices can contain personal information.
The court acknowledged that cellphones aren’t much different than personal computers. Nonetheless, the judges decided that they should strike a balance between security and privacy, and ruled in favor of the police. They said that a warrant is not necessary as long as the police limit the scope of the search and take note of what they are doing.
However, three dissenting judges criticized that reasoning. They noted that cellphones are different than other items like bags, which police have the right to search while arresting a suspect.
Constitutional advocate Nader Hasan said that this decision surprised him. He said that the court could have ruled that the police are required to obtain a warrant before they search through a suspect’s phone due to privacy issues.
Another option for the court would be to allow police to search through a smartphone without a warrant under their power to arrest. Instead, the court opted for a less clear verdict, which has created confusion regarding privacy protection issues, while leaving open doors for challenging police behavior.
The court ruled that cellphone searches should be allowed if they can prevent imminent danger or lead to the arrest of another suspect. In addition, the search has to be directly related to the circumstances of the arrest. The ruling also said that officers would not be justified if they searched a mobile phone incidental to every arrest.
Police are required to keep detailed records of the cellphone search. These records should mention the extent, time, purpose, and duration of the search. They should also state which applications were searched.
The US Supreme court heard a similar case this summer and the judges unanimously ruled that police have to obtain a warrant before searching cellphones.
Privacy lawyer Kris Klein feels that this ruling is a victory for advocates of privacy. In his opinion, the judges at least acknowledged that Canadians have some right to privacy with their mobile phones.
In another ruling, the Supreme Court had decided that a search warrant was required to search a personal computer.
Tony Busseri, who is a data security expert, has a different opinion. Busseri says that the security of sensitive data stored on a device is breached if it is searched by police. “You could be working for the CIA and suddenly eyeballs have access to information on your personal device,” he said. “Enterprises need to think about how their employees will use their devices.”