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Warrantless cellphone search: A major invasion of privacy | Sam Zargami

Monday, August 30, 2021 @ 12:15 PM | By Sam Zargami


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Sam Zargami
Upon completing my 1L at the Queen’s University Faculty of Law, I remain deeply concerned about an outdated precedent that invades a person’s privacy rights.

The Ontario case of R v. Fearon 2014 SCC 77 held that the police are permitted to search unlocked cellphones in pursuit of finding information that is related to the crime of arrest. The court has affirmed that warrantless cellphone searches are permitted as it does not breach an individual’s Charter rights. The doctrine of search incident to arrest was applied which allows an officer to conduct a warrantless search if they provide a valid reason for arrest, one that a reasonable person in the same situation as the officer would have.

This is a controversial holding as it widened the variety of admissible evidence in criminal proceedings. It limits peoples’ expectation of privacy with regards to the information that is stored in their cellphones. The precedent also raises the issue of whether other portable devices such as tablets or laptops would be held to the same standard for warrantless police searches.

In dissent to the majority in R v. Fearon, Justice Andromache Karakatsanis states, “These devices provide a window not just into the owner’s most intimate actions and communications, but into his mind, demonstrating private, even uncommunicated, interests, thoughts and feelings. Thus, like the search of the body and of the home, the warrantless search of personal digital devices as an incident of arrest is not proportionate to our privacy interests.” (para. 152).

This is a concern because a lot of sensitive data, photos and conversations are stored on cellphones, making it a substantial breach of privacy when the police can conduct a phone search without a warrant. People utilize cellphones as their primary form of communication through calling, texting and using various social media applications.

To complement, GPS technologies can retrieve and record the precise geographic co-ordinates of a smartphone. This can include the stores, residences, medical facilities and various other locations that a smartphone user previously visited.

Cellphones have become essential in the everyday lives of Canadians to the extent that many people have become psychologically dependent to their phones. In 2018, Statistics Canada found that 88.1 per cent of Canadians own a smartphone. Amongst Canadian smartphone owners, 45.4 per cent check their smartphone every half-hour, 56 per cent check their smartphone as the last activity before bed, 53.6 per cent use their smartphone while watching television, and 20.6 per cent check their smartphone while they eat dinner.

In my opinion, the police should not have the authority to conduct a cellphone search without a judicial warrant. This is because a police cellphone search is inherently more invasive than a home search due to the express nature of cellphone searches. Present legislation requires a judicial warrant for police home searches, whereas a warrant is not required for cellphone searches.

To provide a scenario, suppose that the police want to examine the financial records of a money laundering suspect. They can either retrieve this information through a home or cellphone search. A home search would take a lot of time to complete, as the police would have to obtain a warrant and subsequently spend hours (or possibly days) to search the suspect’s home for relevant financial information.

The procedure for a home search consists of a thorough examination of physical spaces such as cabinets, desks and closets, in addition to finding and assessing secret compartments where sensitive documents may be stored. In contrast, a cellphone search is more expedient.

The requirement of a warrant for police cellphone searches is gaining traction in jurisdictions across the world. When facing ambiguous legal issues, it is helpful to examine the approach of other nations as it can provide a broader perspective (and persuasive force) by demonstrating how a legislative challenge is addressed across the world.

In the United States, the Fourth Amendment of the Constitution protects individuals from unreasonable search and seizures. If a cellphone search is conducted without a warrant, then the suspect’s Fourth Amendment rights have been violated. Therefore, police officers must obtain a warrant prior to searching a suspect’s cellphone.

In Riley v. California 573 U.S. 373 (2014), the United States Supreme Court unanimously confirms that a warrantless cellphone search during an arrest is unconstitutional. Justice John G. Roberts highlights that searching the digital contents of cellphone without a warrant is not necessary because cellphones do not have a risk of causing harm.

In Ireland, the Garda Síochána police force is required to have a warrant in order to search a suspect’s phone. However, after an arrest is conducted, the police are permitted to search a cellphone if they believe that it is necessary in finding evidence supporting a criminal charge.

I predict that in the near future, Parliament will construct a legislation that will require a judicial warrant for police cellphone searches. Thus far, lawmakers have not kept up with the rapidly expanding sophistication of smartphone technology. This is not an unusual occurrence, as regulators and new technologies are analogous to a game of cat and mouse.

Since Facebook’s launch in 2004, legislators have had difficulty in developing social media data privacy laws. Likewise, regulators across the globe are struggling to address the growing fad of electronic cigarettes. Legislators are continuously puzzled by the expansion of unprecedented technologies, the speed of change, in addition to the ethical implications of new products that do not fit into existing legal categories.

For now, the best action one can take to avoid a warrantless cellphone search is to ensure that their device is password-protected.

Sam Zargami is a 2L student at the Queen’s University Faculty of Law. He has edited articles with the Queen’s Law Journal, Canadian Journal of Commercial Arbitration and written blogs with the Queen’s Business Law Clinic. Outside law school, Sam has founded a virtual tutoring company.

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