Supreme Court Rules Unanimously: Police Need Warrants to Search Cell Phone Data

[crazy canuck]

I stand firmly with Seedy.  What a dumb decision.

Yeah how idiotic that the Constitution should impact law enforcement.  It is not like it is relevant to our legal system in anyway.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized

SInce it talks only about unreasonable searches, clearly some searches are reasonable.

It has been held for a long, long time that upon arrest police are entitled to go through someone's pockets.  As Seedy says if you have a little black book police can go through it - so why not a cellphone?

If you don't understand the difference between the amount of data available in a book carried on your person and someones smartphone, then...well, no, forget that. It is not possible for any human being to not understand the difference.

Searches are not justified based on how much (or how little) one can discover.  WE don't say "well you can search the car trunk because that's pretty small, but you can't search their house".

I take some comfort in the fact that the Supreme Court of Canada agrees with me and Berkut and everyone else that sees this as an obvious point. 

From the headnote in R v. Vu

The second issue is whether the warrant authorized the search of the computers and cellular telephone.  Section 8  of the Charter  — which gives everyone the right to be free of unreasonable searches and seizures — seeks to strike an appropriate balance between the right to be free of state interference and the legitimate needs of law enforcement.  This balance is generally achieved in two main ways.  First, the police must obtain judicial authorization for a search before they conduct it, usually in the form of a search warrant.  Second, an authorized search must be conducted in a reasonable manner, ensuring that the search is no more intrusive than is reasonably necessary to achieve its objectives.  The privacy interests implicated by computer searches are markedly different from those at stake in searches of receptacles such as cupboards and filing cabinets.  It is difficult to imagine a more intrusive invasion of privacy than the search of a personal or home computer.  Computers potentially give police access to an almost unlimited universe of information that users cannot control, that they may not even be aware of, may have tried to erase and which may not be, in any meaningful sense, located in the place of search.  The numerous and striking differences between computers and traditional receptacles call for distinctive treatment under s. 8  of the Charter .  The animating assumption of the traditional rule — that if the search of a place is justified, so is the search of receptacles found within it — simply cannot apply with respect to computer searches.

[CountDeMoney]

As fas as this particular case, lazy cops is: lazy.
That will never change, regardless of technological advances.

[Barrister]

I stand firmly with Seedy.  What a dumb decision.

Yeah how idiotic that the Constitution should impact law enforcement.  It is not like it is relevant to our legal system in anyway.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized

SInce it talks only about unreasonable searches, clearly some searches are reasonable.

It has been held for a long, long time that upon arrest police are entitled to go through someone's pockets.  As Seedy says if you have a little black book police can go through it - so why not a cellphone?

If you don't understand the difference between the amount of data available in a book carried on your person and someones smartphone, then...well, no, forget that. It is not possible for any human being to not understand the difference.

Searches are not justified based on how much (or how little) one can discover.  WE don't say "well you can search the car trunk because that's pretty small, but you can't search their house".

I take some comfort in the fact that the Supreme Court of Canada agrees with me and Berkut and everyone else that sees this as an obvious point. 

From the headnote in R v. Vu

The second issue is whether the warrant authorized the search of the computers and cellular telephone.  Section 8  of the Charter  — which gives everyone the right to be free of unreasonable searches and seizures — seeks to strike an appropriate balance between the right to be free of state interference and the legitimate needs of law enforcement.  This balance is generally achieved in two main ways.  First, the police must obtain judicial authorization for a search before they conduct it, usually in the form of a search warrant.  Second, an authorized search must be conducted in a reasonable manner, ensuring that the search is no more intrusive than is reasonably necessary to achieve its objectives.  The privacy interests implicated by computer searches are markedly different from those at stake in searches of receptacles such as cupboards and filing cabinets.  It is difficult to imagine a more intrusive invasion of privacy than the search of a personal or home computer.  Computers potentially give police access to an almost unlimited universe of information that users cannot control, that they may not even be aware of, may have tried to erase and which may not be, in any meaningful sense, located in the place of search.  The numerous and striking differences between computers and traditional receptacles call for distinctive treatment under s. 8  of the Charter .  The animating assumption of the traditional rule — that if the search of a place is justified, so is the search of receptacles found within it — simply cannot apply with respect to computer searches.

I'm unable to find R v Wu from the SCC on point.  Since I doubt you just made it up do you have a link?

In any event though, home computers, being big buily things typically located in ones home, are quite unlike a cellphone.

There is no definitive SCC case on cellphones, but here's the leading Alberta authority (which relies heavily on BCSC authorities):

http://www.canlii.org/en/ab/abqb/doc/2012/2012abqb282/2012abqb282.html

[crazy canuck]

Here you go.  From the SCC website

http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/13327/index.do?r=AAAAAQACdnUAAAAAAQ



edit:  It appears that Alberta authority has been overtaken.

[Barrister]

Here you go.  From the SCC website

http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/13327/index.do?r=AAAAAQACdnUAAAAAAQ



edit:  It appears that Alberta authority has been overtaken.

Disagree - very different circumstances at work.  In Vu police are already executing a search of the person's home - case says the warrant must be specific to also search the computers found there.  I have no particular problem with that submission.

Cases like Franko deal with search of a cell phone incidental to the arrest of a suspect.  Frankly all the cases say that looking at the phone is permissible - some state that the search must be "cursory", while others allow it to be more expansive.

[The Minsky Moment]

In any event though, home computers, being big buily things typically located in ones home, are quite unlike a cellphone.

A smart phone is a computer, tout court.
And many "home" computers are neither bulky, nor necessarily kept at home; the fastest growing segments of the market are thin notebooks, tablets and various hybrids.
The distinction is already close to meaningless; in 5 years it definitively will be.

[crazy canuck]

In Vu police are already executing a search of the person's home - case says the warrant must be specific to also search the computers found there.  I have no particular problem with that submission.

BB, if you read the case more carefully the Court describes smart phones as being computers.  In fact a reference to cell phones is in the headnote I quoted earlier.

How do you make any meaningful distiction between a handheld device which contains all your personal information and a desktop device that does the same thing - other than the fact that diminishing numbers of people actually use desktops these days.

edit:  Minsky already made the point.

[Barrister]

In Vu police are already executing a search of the person's home - case says the warrant must be specific to also search the computers found there.  I have no particular problem with that submission.

BB, if you read the case more carefully the Court describes smart phones as being computers.  In fact a reference to cell phones is in the headnote I quoted earlier.

How do you make any meaningful distiction between a handheld device which contains all your personal information and a desktop device that does the same thing - other than the fact that diminishing numbers of people actually use desktops these days.

Your case is still not about search of a cell phone incidental to arrest.

[crazy canuck]

In Vu police are already executing a search of the person's home - case says the warrant must be specific to also search the computers found there.  I have no particular problem with that submission.

BB, if you read the case more carefully the Court describes smart phones as being computers.  In fact a reference to cell phones is in the headnote I quoted earlier.

How do you make any meaningful distiction between a handheld device which contains all your personal information and a desktop device that does the same thing - other than the fact that diminishing numbers of people actually use desktops these days.

Your case is still not about search of a cell phone incidental to arrest.

Ok, go with that logic.  You will lose.

[Berkut]

You mean like the difference between your bank account PIN in your cell phone, as opposed to it written on the back of a business card in your wallet?

Let's not fall for the idolatry of technology when it comes to very basic premises of a person's right to privacy at the time of arrest.  These are not monumental, paradigm-changig legal differences here.

Besides, there's no obligation for you to carry around your personal data everywhere you go in a cell phone.

What does there not being an obligation for me to carry around my personal data have to do with my right to not have the police search my personal data without a good reason?

My rights are not defined or limited by what I am or am not "obligated" to carry around.

The police could get my PIN from my black book, if I wrote it down there, but they couldn't actually access my account - they certainly could if they downloaded data from my smartphone.

And you are completely wrong - these are in fact, monumental changes here. The difference between the police being able to see what three pictures I can carry around in my wallet and everysingle picture I may have ever taken is most certainly a monumental difference. The amount of data a person can reasonably expect to carry on their person without a smart phone is some minuscule fraction of what data is available if the state is allowed to grab anything they can reach from my smartphone, which is essentially every piece of data about my entire life, and that will only continue to grow.

[Berkut]

Besides, there's no obligation for you to carry around your personal data everywhere you go in a cell phone.

Seriously?   Don't carry a cell phone or the cops could just take it and download everything at any time?  See this is what happens when we try to help out the cops with a little gray area like enabling them to search wallets and crap, they just abuse it all to fuck.  Why jump off the slippery slope so completely?  Recognize that we have a gray area, a place that is right up against the line, and go no farther.  Jesus fucking Christ.

Bingo.

This is all started with the argument that cops need to be able to search people because it is "reasonable" for them to do so in order to protect themselves from the possibility of someone carrying a weapon.

And now we are arguing about whether cops can just download every detail of your life. Because you know, they need to make sure you are not carrying a weapon.

This is, again, where I point out how some people have no actual practical care at all for the concept of "liberty" when it comes to any actual application of the idea in real life. It is just pure lip service.

[Admiral Yi]

Not just to protect themselves; also so they can seize any evidence of the crime.

[derspiess]

Have not seen the details, but the Aereo ruling was disappointing.

[frunk]

Not just to protect themselves; also so they can seize any evidence of the crime.

Isn't that what a warrant is for?

[Barrister]

Not just to protect themselves; also so they can seize any evidence of the crime.

Bingo.

The Alberta Queen's Bench case I linked to goes on about that point.  The police were not, upon arrest, entitled to search through your cell phone just because.  There had to be a connection between the offence arrested for, and the reason to search the cell phone.  In Franko, the arrest was for drugs, and given the common use of cell phones in the drug trade police were entitled to search through text messages looking for evidence of drug transactions.

I was just reading another case that cited Franko - R v Lanning.  In that case the Accused was arrested for possessing a stolen truck.  The officer seizes a cell phone from the Accused.  The officer looks through the photos stored on the phone hoping to find pictures linking the accused to the stolen truck (such evidence can be very useful).  Instead of course he find a number of pictures of underage naked women.  They then go and get a warrant for the phone.

Judge finds that since the search was linked to the arrest everything was fine.