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Police in Canada don’t need a judge’s permission to search a suspect’s cell phone so long as they follow certain steps, the Supreme Court of Canada ruled on Thursday in a split decision that comes as a setback for privacy advocates.
The case concerned a jewelry heist in which police arrested two suspects and, upon searching one of their cell phones, discovered an incriminating text message and a photo of a handgun, which in turn became evidence to convict them.
The suspects argued that since the search took place without a warrant, it violated their constitutional rights against unreasonable search and seizure because cell phones contain such a deep trove of personal information.
But while the majority of the court acknowledged that cell phones are now akin to personal computers, the judges nonetheless concluded that the balance between privacy and security favored the police in this case. They ruled that a warrant was not necessary so long the judges limited the scope of their search, and so long as they took notes of what they were doing.
Three dissenting judges, however, blasted that reasoning and noted that cell phones are “quantitatively and qualitatively” different from other physical items, such as bags, that police have historically had a common law right to search at the time of arrest. The judges likened the cell phone to a house key, and pointed out that police can’t search a suspect’s house simply because they have the key in their pocket.
Overall, the case shows how courts everywhere are trying to recalibrate privacy rights at a time when most people are caring around phones that provide enormous amounts of information about their personal life.
The Canadian ruling is also significant because it splits from the ruling in a similar case heard by the U.S. Supreme Court this summer. In the case, the judges issued an unambiguous 9-0 ruling that police do have to get a warrant notwithstanding the inconvenience.
One bright spot for privacy advocates in the decision, as Canadian law professor Michael Geist noted, is that the court found that the presence of a password is immaterial when it came to determining whether or not privacy rights are at stake.
Overall, however, the case is a step back for privacy since it rejects a bright line rule such as the American one, and instead lets police search phones largely as they wish. While the Canadian court did impose new common law obligations for such searches, these steps are in reality only likely to create further legal confusion.