The Supreme Court of Canada will soon decide when police can look at one’s cell phone without a warrant.
Given the large amount of personal information that exists on our smartphones, this will be an important decision. A smartphone can be a window to personal information such as email, banking details, our location over time, personal photos, and even health information. Looking at a cell phone can be as invasive as searching our home.
In the case going to the Supreme Court, the accused, Mr. Fearon, was arrested on suspicion of his role in a robbery. At the time of his arrest, he had a cell phone, which did not have a password restricting access. .Incident to the arrest, the police looked through the contents of his phone finding messages and pictures incriminating him for the robbery. At trial, Mr. Fearon attempted to have the evidence deemed inadmissible, arguing that the police should have obtained a warrant to search his phone. The Court held that the evidence was admissible.
The Court reasoned that since the phone did not have a password, a cursory examination of its contents incidental to arrest was acceptable. The court stated that had access to the phone required a password, the police would need a warrant to go through the phone.
The court recognized “the highly personal and sensitive nature of the contents of a cell phone” and the fairly high expectation that such information would attract an expectation of privacy, but allowed the search nonetheless.
The Supreme Court will determine whether that principle should be upheld or replaced with something different.
Some may argue that the court did a good job balancing the privacy interests of individuals with the enforcement interests of the police. However others may think it is akin to saying that whether police can search one’s house depends on whether the door is locked.
The concept of a phone being locked may not be as straightforward as it seems, given ever changing technology.
For example the iPhone 5S has a finger print reader that can be used instead of a password to gain access to the phone.
A password is something contained in the mind of an individual, whereas a finger print is physical. It is easily obtained through a minor amount of force, by putting the phone to the user’s finger.
Other authentication processes are on the horizon, including some that unlock the phone when in close proximity to its owner. For example, the upcoming Nymi is a bracelet that senses the unique heart rhythm of its owner which effectively serves as a password to provide access to everything from phones to computers to doors. Other technology that would accomplish the same thing are electronic tattoos and authentication pills.
In a situation where an individual uses one of those authentication methods, their phone would appear to be unlocked, even though they intended to restrict access to their phone. Let’s hope the Supreme Court of Canada considers the technology in this light, rather than just a simple password.
A condensed version of this article appeared in my last Tech Watch column.